1. Basis of Contract
In these Conditions of Sale, the term “Seller” refers to Ultimate Solutions currently trading at 309 Hereford St Christchurch Central but shall include any premises from which Ultimate Solutions may operate in the future. The term “Buyer” refers to any person, firm or company, whether incorporated or not, which purchases any goods of whatever nature, whether or not manufactured by the Seller, and which are sold by the Seller to the Buyer. The placing of any order whether verbally or in writing by the Buyer shall constitute unqualified acceptance of these conditions.
The term “Contract” refers to any agreement to supply the goods to the Buyer. A Contract may arise in different ways such as when the Seller issues a confirmation to the Buyer or when the Buyer accepts a quotation submitted by the Seller.
2. Title and Security
Ownership in the goods shall remain with the Seller until the Buyer has discharged all outstanding indebtedness to the Seller whatsoever, but risk in the goods shall pass from the Seller to the Buyer in accordance with clause 3.
The Seller shall retain a purchase money security interest in all goods sold and delivered to the Buyer. The Seller may perfect its security interest by registering financing statement(s) pursuant to the Personal Property Securities Act 1999. The Buyer waives any right to receive verification of any financing statement(s) so registered.
If the Buyer fails to comply with the Seller’s terms of payment, the Seller shall have all rights and remedies as may be available to it and may enter upon any premises where the goods are situated and take possession of such goods. The Buyer shall fully indemnify the Seller for any claim and/or demand which may be brought in respect of such entry and taking of possession.
3. Passing of Risk
The risk in goods carried overland shall pass to the Buyer on delivery to the Buyer’s designated delivery point or to the carrier nominated by the Buyer (whichever shall first occur). The risk in goods supplied by sea or air transport shall pass to the Buyer on delivery to the carrier nominated by the Buyer.
If no time for delivery is specified in the Contract, the Buyer shall be bound to accept the goods when they are ready for delivery by the Seller. If the Buyer makes a specific request for a particular time of day or means of delivery, the extra cost thereof, if any, shall be charged to the Buyer. If the Seller gives an estimated shipping date, it shall use its reasonable efforts to meet it. However, the Seller accepts no responsibility for delays beyond its control.
5. Delivery by Installment/Scheduled Deliveries
Where an order by the Buyer on the Seller calls for delivery by several instalments, each such instalment shall be treated as a separate Contract and the rights of either party shall be construed accordingly. However, the Seller may suspend delivery of any instalment whilst payment is overdue in respect of any previous instalment, and the Seller has not agreed in writing to any extension or forbearance of such overdue payment.
6. Non Delivery
The Buyer shall notify the Seller in writing of the non receipt of any goods within ten days of the invoice date, failing which the Seller shall be under no liability whatsoever to the Buyer regardless of any conditions of carriers or insurers.
No order, once accepted by the Seller, may be cancelled or varied by the Buyer except with the written consent of Seller on such terms as the Seller may require. Without limiting the generality of the foregoing, the Seller shall be entitled to full reimbursement for any costs incurred as a result of such order cancellation or variation.
8. Payment Terms
Payment by the Buyer to the Seller shall, unless otherwise agreed in writing, be 20 days following the end of the month of invoice.
If the Buyer is in default of making payment in accordance with this clause, then interest shall be payable on the unpaid amount at the rate of 2% per month from the date the payment was due until actual payment, and the Buyer shall pay the costs of the Seller (as between solicitor and client) of and incidental to the enforcement or attempted enforcement by the Seller of its rights under the Contract.
The Buyer shall pay each invoice in full and shall have no right to deduct, set off or credit against the invoice any claims which the Buyer might have against the Seller.
9. Conditions and Warranties
The Seller gives no conditions or warranty that the goods supplied are fit for any particular purpose for which the Buyer may require the same. The Buyer shall satisfy itself prior to ordering that the goods are fit and suitable for the purpose for which the Buyer requires them.
10. Variation of Contract
All sales shall be subject to these conditions. No variations of, or additions to, these conditions shall have effect unless they are in writing signed by or on behalf of the Seller. Should any of these conditions conflict with any conditions stated on the Buyer’s orders, these conditions shall prevail. However, any special conditions contained in a Contract shall supersede these Conditions.
11. Consequential Loss
The Seller shall not be liable for any indirect or consequential damage or loss which the Buyer, or the Buyer’s customer or client, may suffer as a result of any delay in delivery, any defective or damaged goods, or any other cause whatsoever.
12. Supplier’s Manufacturers Conditions
Any self adhesive tape or conversion thereof supplied to the Buyer is sold subject to the stipulation of the manufacturer of the self adhesive tape as to quality, storage, adhesive life or other conditions in the manufacturer’s specifications or conditions of sale imposed on the Seller.
13. Statutory Requirements
The Seller gives no warranty that the design, construction or quality of the goods supplied will comply with all relevant requirements of any statute, rule, order or other instrument having the force of law which may be in force of the date of sale.
14. Defective Goods and Returns
Any goods which are claimed to be defective through faulty material or workmanship must be returned to the Seller within fourteen days from the date of receipt. On any such return, the Seller may decide in its absolute discretion whether to replace the goods or credit the Buyer with the cost of the purchase from the Seller. In accordance with the terms herein contained the Seller shall have no further liability whatsoever.
15. Quantity Tolerance
The Seller will use its reasonable endeavours to deliver the quantity of goods ordered by the Buyer. The Seller reserves the right to vary up to 10% plus or minus the quantity ordered and the Contract price shall be varied accordingly on a pro rata basis.
The Buyer shall rely upon its own judgement as to the nature, quality and condition of the goods and their suitability for any purpose and not upon any representation made by the Seller. Any description of the goods given by the Seller shall not constitute a sale by description.
The Buyer may request production samples of any goods ordered provided that all tooling costs have been paid. In the event of samples being supplied other than as production samples, the Buyer shall accept such samples solely for information and as in no way imparting any express or implied conditions or warranties as to quality, description, colour, fitness or merchantable quality of goods subsequently delivered. The Buyer shall be deemed to have satisfied itself as to such matters prior to ordering the goods. An inspection by the buyer of a sample of the goods shall not constitute a sale by sample.
From time to time, the Seller may provide written recommendations as to the use to which any goods sold to the Buyer may be put. The Seller shall have no responsibility whatsoever for any damage, liability, cost, claim or expense suffered by the Buyer or any third party following such recommendation. The Seller will assist by supplying samples pursuant to clause 17 of these Conditions so that the Buyer can satisfy itself of suitability for its own purposes.
19. Infringement of Patents
When goods are manufactured by the Seller in accordance with the Buyer’s specifications and requirements, the Buyer shall indemnify the Seller against all costs, claims and expenses incurred by the Seller in respect of the infringement or alleged infringement by such goods of any patents, registered designs or other rights belonging to third parties.
20. Force Majeure
The Seller shall do all within its power to perform the terms of any Contract to which these conditions form part. In particular, the Seller shall use its best endeavours to meet all delivery dates. However, the Seller shall not be liable for any failure to observe or any breach of any of the terms hereof by reason of war, riots, civil commotion, strikes, lockouts, trade disputes, fires, breakdowns, transport delays, Government action, delay in delivery by Seller’s suppliers or any other cause beyond the Seller’s control.
21. Operations of Law
These Conditions shall be construed, and the rights of the parties hereto shall be regulated, by the laws of New Zealand. The parties submit to the jurisdiction of New Zealand courts in the event of any dispute.