Purchase of goods and services T&Cs

Terms and conditions for the purchase of goods and services

1. Interpretation 1.1 Definitions: Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business. Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 10.5. Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions. Customer: Team YCBC Enterprises Ltd. Registered Office: 222 Milson Line, Milson, Palmerston North 4414 New Zealand. Force Majeure Event: an event or circumstance beyond a party's reasonable control. Goods: the goods (or any part of them) set out in the Order. Order: the Customer's order for the Goods, as set out in the Customer's purchase order form. Specification: any specification for the Goods, including any related plans and drawings, that is agreed [in writing] by the Customer and the Supplier. Supplier: the person or firm who supplies the Goods to the Customer. 1.2 Interpretation: (a) a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted. (b) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms. (c) a reference to writing or written includes emails. 2. Basis of contract 2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. 2.2 The Order constitutes the acceptance of the offer made in the Suppliers quotation. 2 2.3 The Supplier waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Supplier that is inconsistent with these Conditions. 3. Delivery 3.1 The Supplier shall ensure that: (a) each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and (b) if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier's expense. 3.2 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready. 3.3 Delivery is completed on the completion of unloading of the Goods at the Delivery Location. 3.4 Time of delivery is of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods. 3.5 The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods. 3.6 The Supplier may not deliver the Goods by instalments, unless agreed in writing signed by the Customer. 4. Quality 4.1 The Supplier warrants that on delivery, and for a period of 24 months from the date of delivery (warranty period), the Goods shall: 3 (a) conform in all material respects with their description and any applicable Specification; and (b) be free from material defects in design, material and workmanship; and (c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and (d) be fit for any purpose held out by the Supplier. 4.2 Subject to clause 4.3, if: (a) the Customer gives notice in writing to the Supplier during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 4.1; (b) the Supplier is given a reasonable opportunity of examining such Goods the Supplier shall, at the Customers option, repair or replace the defective Goods, or refund the price of the defective Goods in full. 4.3 The Supplier shall not be liable for the Goods' failure to comply with the warranty set out in clause 4.1 in any of the following events: (a) the defect arises because the Customer failed to follow the Supplier's written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same; (b) the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer; (c) the Customer alters or repairs such Goods without the written consent of the Supplier; (d) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions. 4.4 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier. 5. Title and risk 5.1 The title and risk in the Goods shall pass to the Customer on completion of delivery. 6. Price and payment 6.1 The price of the Goods shall be the price set out in the Order. 4 6.2 The price of the Goods: excludes amounts in respect of value added tax (GST), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, 6.3 The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery. 6.4 The Customer shall pay the invoice in full and in cleared funds by the end of the month following the month the invoice was delivered. Payment shall be made to the bank account nominated in writing by the Supplier. 6.5 The Customer may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Supplier against any amount payable by the Customer to the Supplier. 7. Termination 7.1 Without limiting its other rights or remedies, the Customer may terminate this Contract with immediate effect by giving written notice to the Supplier if: (a) the Supplier commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing to do so; (b) the Supplier takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; (c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or (d) the Customer's financial position deteriorates to such an extent that in the Supplier's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy. 7.2 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 8.1(a) to clause 8.1(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment. 5 7.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment. 7.4 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest. 7.5 Termination of the Contract shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination. 7.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect. 8. Limitation of liability 8.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for: (a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); (b) fraud or fraudulent misrepresentation; (c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or (d) defective products under the Consumer Protection Act 1987; or (e) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability. 9. Force majeure Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for 5 weeks, the party not affected may terminate this Contract by giving 14 days written notice to the affected party. 10. General 10.1 Assignment and other dealings. (a) The Supplier may not at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. 6 (b) The Customer may assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier. 10.2 Confidentiality. (a) The Supplier undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, products, designs, clients or suppliers of the Customer or of any member of the group to which the Customer belongs, except as permitted by clause 10.2(b). For the purposes of this clause, group means that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party. (b) The Supplier may disclose the Customers confidential information: (i) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the Suppliers rights or carrying out its obligations under or in connection with this agreement. The Supplier shall ensure that its employees, officers, representatives or advisers to whom it discloses the Customers confidential information comply with this clause 10.2; and (ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. (c) The Supplier shall not use the Customers confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement. 10.3 Entire agreement. 10.4 This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. 10.5 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives). 10.6 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy. 7 10.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract. 10.8 Notices. (a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or email. (b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.7(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by email, one Business Day after transmission. (c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action. 10.9 Third party rights. No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms. 10.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of New Zealand. 10.11 Jurisdiction. Each party irrevocably agrees that the courts of New Zealand shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.