“AML” means Australasia Moulding Limited, its successors and assigns or any person acting on behalf of and with the authority of Australasia Moulding Limited.
“Customer” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
“Goods” means all Goods or Services supplied by AML to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
“Price” means the Price payable for the Goods as agreed between AML and the Customer in accordance with clause 5 below.
The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
These terms and conditions may only be amended with the consent of both parties in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and AML.
Goods are supplied by AML only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
AML shall retain the right to accept any order placed by the Customer in full or partially. Where AML is unable to supply the Goods ordered, AML shall refund to the Customer any monies paid less any non-refundable deposit.
Electronic Transactions Act 2002
Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 22 of the Electronic Transactions Act 2002 or any other applicable provisions of that Act or any Regulations referred to in that Act.
Change in Control
The Customer shall give AML not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by AML as a result of the Customer’s failure to comply with this clause.
Price and Payment
At AML’s sole discretion the Price shall be either:
as indicated on any invoice provided by AML to the Customer; or
the Price as at the date of delivery of the Goods according to AML’s current price list; or
AML’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
AML reserves the right to change the Price if a variation to AML’s quotation is requested.
At AML’s sole discretion a non-refundable deposit may be required. Any variation from the plan of scheduled Services (including, but not limited to, any variation as a result of additional works required due to unforeseen circumstances such as changes to specifications or Goods to be supplied, stock availability or as a result of any increase to AML in the cost of Goods (including but not limited to overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) and labour) will be charged for on the basis of AML’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
AML reserves the right to change the Price where a bulk discount (quantity pricing) has been offered by AML, and the Customer subsequently reduces the quantity of Goods ordered.
Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by AML, which may be:
on delivery of the Goods;
before delivery of the Goods;
by way of instalments/progress payments in accordance with AML’s payment schedule;
for certain approved Customers, due twenty (20) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
the date specified on any invoice or other form as being the date for payment; or
failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by AML.
Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Customer and AML.
Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to AML an amount equal to any GST AML must pay for any supply by AML under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
Delivery of Goods
Delivery (“Delivery”) of the Goods is taken to occur at the time that:
the Customer or the Customer’s nominated carrier takes possession of the Goods at AML’s address; or
AML (or AML’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
At AML’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, AML is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by AML is sufficient evidence of AML’s rights to receive the insurance proceeds without the need for any person dealing with AML to make further enquiries.
If the Customer requests AML to leave Goods outside AML’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
The Customer acknowledges that all descriptive specifications, illustrations, drawings, data, dimensions, ratings and weights stated in AML’s or manufacturer’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Customer shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by AML.
The Customer shall be responsible for ensuring that the Goods ordered are suitable for their intended use.
The Customer shall ensure that AML has clear and free access to the delivery site at all times to enable them to deliver the Goods. AML shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of AML.
It is the responsibility of the Customer to ensure that access is suitable to accept the weight of laden trucks, front end loaders or other lifting equipment as may be deemed necessary by AML.
The Customer will make all necessary arrangements to take Delivery wherever the Goods and/or Services are tendered for Delivery and will be responsible for unloading the Goods from the delivery vehicle at its own costs. If the Customer is unable to take Delivery at the time of Delivery, or otherwise requests AML to delay Delivery, the Customer will pay to AML any reasonable costs incurred by AML in relation to the storage and redelivery of the Goods and or Services.
Compliance with Laws
The Customer and AML shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services.
The Customer agrees that the site will comply with any workplace health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
AML and the Customer agree that ownership of the Goods shall not pass until:
the Customer has paid AML all amounts owing to AML; and
the Customer has met all of its other obligations to AML.
Receipt by AML of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
It is further agreed that:
until ownership of the Goods passes to the Customer in accordance with clause 11.1 that the Customer is only a bailee of the Goods and must return the Goods to AML on request.
the Customer holds the benefit of the Customer’s insurance of the Goods on trust for AML and must pay to AML the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for AML and must pay or deliver the proceeds to AML on demand.
the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of AML and must sell, dispose of or return the resulting product to AML as it so directs.
the Customer irrevocably authorises AML to enter any premises where AML believes the Goods are kept and recover possession of the Goods.
AML may recover possession of any Goods in transit whether or not delivery has occurred.
the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of AML.
AML may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
Personal Property Securities Act 1999 (“PPSA”)
Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:
these terms and conditions constitute a security agreement for the purposes of the PPSA; and
a security interest is taken in all Goods and/or collateral (account) – being a monetary obligation of the Customer to AML for Services – that have previously been supplied and that will be supplied in the future by AML to the Customer.
The Customer undertakes to:
sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which AML may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
indemnify, and upon demand reimburse, AML for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of AML; and
immediately advise AML of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
AML and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
Unless otherwise agreed to in writing by AML, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
The Customer shall unconditionally ratify any actions taken by AML under clauses 12.1 to 12.5.
Security and Charge
In consideration of AML agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
The Customer indemnifies AML from and against all AML’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising AML’s rights under this clause.
The Customer hereby disclaims any right to rescind, or cancel any contract with AML or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by AML and the Customer acknowledges that the Goods are bought relying solely upon the Customer’s skill and judgment.
The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify AML of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford AML an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which AML has agreed in writing that the Customer is entitled to reject, AML’s liability is limited to either (at AML’s discretion) replacing the Goods or repairing the Goods.
Goods will not be accepted for return other than in accordance with 15.1 above, and provided that:
AML has agreed in writing to accept the return of the Goods; and
the Goods are returned at the Customer’s cost within seven (7) days of the delivery date; and
AML will not be liable for Goods which have not been stored or used in a proper manner; and
the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
AML may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of ten percent (10%) of the value of the returned Goods plus any freight.
Subject to clause 15.1, non-stocklist items or Goods made to the Customer’s specifications are not acceptable for credit or return.
For Goods not manufactured by AML, the warranty shall be the current warranty provided by the manufacturer of the Goods. AML shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
The conditions applicable to the warranty given on Goods supplied by AML are contained on the “Warranty Card” that will be supplied with the Goods.
Consumer Guarantees Act 1993
If the Customer is acquiring Goods for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by AML to the Customer.
Where AML has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of AML.
The Customer warrants that all designs, specifications or instructions given to AML will not cause AML to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify AML against any action taken by a third party against AML in respect of any such infringement.
The Customer agrees that AML may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which AML has created for the Customer.
Default and Consequences of Default
Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at AML’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
If the Customer owes AML any money the Customer shall indemnify AML from and against all costs and disbursements incurred by AML in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, AML’s collection agency costs, and bank dishonour fees).
Further to any other rights or remedies AML may have under this contract, if a Customer has made payment to AML, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by AML under this clause 19 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this agreement.
Without prejudice to any other remedies AML may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions AML may suspend or terminate the supply of Goods to the Customer. AML will not be liable to the Customer for any loss or damage the Customer suffers because AML has exercised its rights under this clause.
Without prejudice to AML’s other remedies at law AML shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to AML shall, whether or not due for payment, become immediately payable if:
any money payable to AML becomes overdue, or in AML’s opinion the Customer will be unable to make a payment when it falls due;
the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
AML may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice AML shall repay to the Customer any money paid by the Customer for the Goods. AML shall not be liable for any loss or damage whatsoever arising from such cancellation.
In the event that the Customer cancels delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by AML as a direct result of the cancellation (including, but not limited to, any loss of profits).
Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
Privacy Act 1993
The Customer authorises AML or AML’s agent to:
access, collect, retain and use any information about the Customer;
(including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer’s creditworthiness; or
for the purpose of marketing products and services to the Customer.
disclose information about the Customer, whether collected by AML from the Customer directly or obtained by AML from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer.
Where the Customer is an individual the authorities under clause 21.1 are authorities or consents for the purposes of the Privacy Act 1993.
The Customer shall have the right to request AML for a copy of the information about the Customer retained by AML and the right to request AML to correct any incorrect information about the Customer held by AML.
Construction Contracts Act 2002
The Customer hereby expressly acknowledges that:
AML has the right to suspend work within five (5) working days of written notice of its intent to do so if a payment claim is served on the Customer, and:
the payment is not paid in full by the due date for payment and no payment schedule has been given by the Customer; or
a scheduled amount stated in a payment schedule issued by the Customer in relation to the payment claim is not paid in full by the due date for its payment; or
the Customer has not complied with an adjudicator’s notice that the Customer must pay an amount to AML by a particular date; and
AML has given written notice to the Customer of its intention to suspend the carrying out of construction work under the construction contract.
if AML suspends work, it:
is not in breach of contract; and
is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Customer or by any person claiming through the Customer; and
is entitled to an extension of time to complete the contract; and
keeps its rights under the contract including the right to terminate the contract; and may at any time lift the suspension, even if the amount has not been paid or an adjudicator’s determination has not been complied with.
if AML exercises the right to suspend work, the exercise of that right does not:
affect any rights that would otherwise have been available to AML under the Contractual Remedies Act 1979; or
enable the Customer to exercise any rights that may otherwise have been available to the Customer under that Act as a direct consequence of AML suspending work under this provision.
The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.
AML shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by AML of these terms and conditions (alternatively AML’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by AML nor to withhold payment of any invoice because part of that invoice is in dispute.
The Customer agrees that AML may amend these terms and conditions at any time. If AML makes a change to these terms and conditions, then that change will take effect from the date on which AML notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for AML to provide Goods to the Customer.
Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
Both parties warrant that they have the power to enter into this agreement and has obtained all necessary authorisations to allow them to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
Goods must not be exported outside of New Zealand without written approval from AML. Where Goods or Services are supplied outside New Zealand, the Customer shall be responsible for obtaining all licences and authorisations.