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RSS Communications LTD Products Terms of Trade
The Buyer and the Company shall acknowledge that these Terms of Trade constitute a Security Agreement as defined by the Personal Property Securities Act 1999 (“PPSA”). For the purposes of the PPSA, Collateral shall include all Goods supplied by the Company and the proceeds from the sale of all Goods. The Buyer shall also agree 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.
These terms of Contract between , trading as RSS Communications LTD, (the "Company") and the Buyer (the "Buyer") shall apply to all orders for services and related materials or products (“Goods”) accepted by the Company from the Buyer and that these terms and conditions shall prevail and take precedence over any document or oral message from the Buyer. 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.
Quotation and Price
The Company shall confirm the price of Goods in its price list or as a quotation and the Buyer shall confirm acceptance by electronically accepting the quote through Xero program or providing an order.
Where the Company confirms its price by quotation no quotation shall constitute an offer unless signed by the Company and the Company may withdraw any quotation before the Buyers signed acceptance or order. The quotation price will be exclusive of GST and 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 increases in the cost of materials 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 Buyer varies or alters the requirements for the Goods. Freight, insurance, and other handling charges shall be the responsibility of the Buyer.
For the sale of Goods to Companies or incorporations not registered in New Zealand the price shall be the price ruling at the date of delivery; and subject to any variation of this clause which shall be notified to the Buyer in writing, the price shall be paid by the Buyer to the Company as follows:
(a) in cleared funds prior to shipment of the Goods by the Company (such as credit card payment) OR
(b) by irrevocable letter of credit at sight and established by the Buyer, OR
(c) by any other means as notified to the Buyer in writing when the order is placed.
Payment shall be made in advance of delivery of the Goods except where the Company has agreed to provide credit to the Buyer in which case payment shall be made by the 20th of the month following date of invoice, which terms shall be declared in the Company invoice. The Buyer shall make payment of all amounts due to the Company without any delay or deduction whether by way of set-off, counterclaim or otherwise. If at any time the Company reasonably deems the credit of the Buyer to be unsatisfactory, it may require the Buyer to provide at the Buyers cost, security for payment and/or the Company may suspend performance of its obligations under this Contract until security is provided to the Companys satisfaction and the Company may require the Buyer to pay all costs incurred as a result of suspension and re-commencement of supply including debt collection and legal costs.
Interest for Late Payment
The Company may charge the Buyer interest on any moneys outstanding under the Contract on a daily basis at a rate equal to 5% above the Companys bank indicator lending rate. Interest is payable from the date payment was due until the date the Company receives payment.
The Companys right to charge interest is without prejudice to the Companys other rights or remedies for the Buyers default in failing to pay on the due date. The Company may suspend performance of any of its obligations and under the Retention of Title clause secure any Goods previously supplied by the Company and in possession of the Buyer to the value of the outstanding amount owed until payment is made in full.
Delivery by the Company to a carrier accepted by the Buyer or delivery from the Companys premises to the premises of the Buyer constitutes delivery. If the Buyer fails to take delivery the Company has the right to charge the Buyer for costs of storage or transport or both. The Company shall not be responsible for the validity of the person accepting the Goods on behalf of the Buyer at the time of delivery.
Goods that are finished items but only part of an order may be delivered in instalments at the Companys discretion and in such case each delivery will be regarded as a separate contract and Goods delivered shall be paid by the Buyer in accordance with the Terms of Payment.
The Company will make every effort to ensure delivery of Goods on time but will not be liable for any loss or damage or consequential loss to the Buyer arising from delays in delivery.
Risk, Ownership and Title
Risk of any loss, damage or deterioration of or to the Goods shall be borne by the Buyer from the time of delivery of the Goods into the Buyers care and control and the Buyer shall properly insure the Goods from theft, fire or loss damage. Where the Buyer fails to insure the Goods upon delivery and suffers loss or damage to the Goods, and where the Goods remain unpaid, the Buyer shall agree to pay the Company for the full cost of the Goods. Risk for Goods shall include Goods provided to the Buyer on a consignment or sale or return basis.
The Buyer agrees that the Company has legal and equitable right to title in all and any Goods supplied which remain unpaid and ownership shall only pass to the Buyer when the contract price is paid. For as long as ownership in the Goods is retained by the Company, the Buyer will store the Goods separately and in such a way that they are identifiable as the property of the Company.
Notwithstanding that property in the Goods is retained by the Company, the Buyer is hereby authorised to sell the Goods in the ordinary course of business and to deal with such proceeds as fiduciary agent and bailee of the Company until the Buyer pays the Company in full without deduction or setoff: provided that such authority may be revoked by written notice at any time if the Company deems the credit of the Buyer to be unsatisfactory or if the Buyer is in default of its obligations under the Contract or any other contract between the Company and the Buyer.
Where any Goods in respect of which title has not passed to the Buyer are sold by the Buyer pursuant to the authority granted any book debt created upon sale of such Goods and the proceeds of sale of such Goods when received by the Buyer, shall be held upon trust by the Buyer for the Company and any proceeds of sale so received by the Buyer shall be placed in a separate bank account and shall first be applied towards the satisfaction of all indebtedness of the Buyer to the Company.
If the Goods, the subject of this Contract, have become the constituent of mixed with or attached to any other goods, meaning Goods that are sold by the Company, and those goods are sold by the Buyer prior to the Company receiving payment, then a portion of the proceeds of that sale, attributable to the Companys Goods, shall be the property of the Company, and the Buyer shall ensure that such proceeds are at all times held in a separate fund in trust for the Company.
The Buyer hereby irrevocably gives the Company, its agents or servants, the free and uninterrupted right to enter its premises during normal business hours in accordance with the Credit (repossession) Act, to search for, inspect and remove any of the Goods supplied in which the Company has retained ownership and the Buyer will not hold the Company responsible for any economic or consequential loss that the Buyer may suffer as a result.
The Buyer shall inform its creditors of the terms upon which it buys Goods from the Company and that the Company may create and register a Purchase Money Security Interest under the PPSA for any and all Goods and that the Buyer agrees to waive the right to receive a verification statement for purposes of s.148 of the Act. The Buyer shall inform any Trustee in Bankruptcy or Liquidator of the Buyer or any Receiver of the Buyers business or assets of the rights of the Company and title to the proceeds of sale.
The Security Agreement is a continuing security and will operate irrespective of any intervening payment or settlement of account until a release has been signed by the Company. The security interest granted in the Collateral has the same priority in relation to any and all of the Goods supplied to the Buyer at any time.
Claims for Returned, Damaged or Defective Goods
The Company may, at its discretion, repair or replace any damaged or defective Goods or make a reasonable allowance on the purchase of goods to replace the Goods provided:
(a) The Buyer returns the Goods within thirty (30) days of delivery or within thirty (30) days of a third party purchaser delivering the Goods back to the Buyer, together with a copy of the invoice and a claim specifically identifying the damage or defect(s); and
(b) The Company has reasonable opportunity to investigate the claim.
If the Buyer does not comply with the above requirements, the Buyer will be deemed to have accepted the Goods and the Company will not incur any liability whatsoever in relation to the Goods.
The Buyer agrees not to consider claims from a third party purchaser and the Buyer will agree that the Company shall not consider claims from the Buyer in respect of Goods which:
(i) are not intact and in original condition.
(ii) have been improperly stored and suffered damage.
(iii) have been sold to the Buyer on a non-refundable basis.
(iv) have been sold to the Buyer on tender or in non-standard lots.
(v) are more than (6) six months after the date of delivery.
(vi) are repaired by the Buyer or a third party without the permission of the Company.
Company Guarantee & Liability
The Companys liability in respect of any claim shall relate only to specific defects in the Goods arising from faulty hardware or materials or workmanship of the Company. The warranty on Goods shall be six (6) months from the date of delivery to the Buyer OR three (3) months from the date from delivery by the Buyer. Should a manufacturer warranty apply the warranty is carried by the manufacturer and will be returned to the manufacturer for repair. The buyer will have to return the faulty goods to the company to action the repair on the buyer’s behalf.
Where the Company accepts liability for damage or defect and elects to repair or replace Goods it shall repair or replace the Goods to their original condition but where goods or materials used in manufacture are not available or where the Company has imported Goods for re-sale to the Buyer which are not manufactured by the Company it shall repair or replace by other articles of similar description and value (but can be of a standard type) and such substituted articles shall become subject to the provisions of this Contract.
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 the Companys reasonable control. The occurrence of such an event shall not give the Buyer a right of cancellation of the contract.
Consumer Guarantees Act 1993
Nothing in these terms is intended to have the affect of contracting out of the provisions of the Consumer Guarantees Act 1993 except to the extent permitted by that Act where the Buyer acquires the Goods for the business purposes of a business and not for resale to a consumer and all provisions of these terms shall be read as modified to the extent necessary to give effect to that intention.
Where the Buyer onsells the Goods to third party consumer purchasers the Buyer shall be mindful of its obligations under the Act to offer repair, replacement or full value of the Goods to the consumer purchaser subject to the claims conditions and upon informing the Company where damage or defects occur. The Company shall determine the option to be taken at its sole discretion and shall inform the Buyer. The Company shall ensure that the Buyer does not suffer economic loss in the application of the Company warranty under the Act. If the Buyer makes any other representations to the purchaser the Buyer shall indemnify the Company against any liability or cost incurred by the Company as a result of any breach by the Buyer of this provision.
Applicable Law for Dispute and Arbitration
In the event of any dispute between the Company and the Buyer arising out of this Agreement, the substantive laws of New Zealand shall apply and such dispute shall be referred to a Mediator to be agreed between the parties and the costs of mediation shall be equally shared and upon failure to accept the resolution of the Mediator shall be referred to an Arbitrator to be agreed between the parties and the costs of arbitration shall be equally shared and upon failure to reach agreement arbitration will be conducted in accordance with the New Zealand Arbitration Act 1996 and any amendments thereof and such arbitration and legal hearings shall be conducted in New Zealand.
Where the Buyer is a Company, the person(s) referred to as guarantor(s) in this Agreement shall personally guarantee the obligations of the Buyer.
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