1. QUOTATION AND CONTRACT
No quotation issued by Domett Truck and Trailer Limited (hereinafter called “the Company”) shall constitute an offer or tender. No contract shall exist between the Company and a Purchaser until the Purchaser’s order has been accepted by the Company in writing by an approved employee of the Company in addition to the salesman, if any. At any time prior to acceptance of a Purchaser’s order the Company may without incurring any liability, revise or with draw a quotation. Unless previously withdrawn a quotation shall lapse after thirty days from the date thereof.
2. SPECIFICATIONS
The Company reserves the right to alter, vary or modify the specifications of goods without notice. The specifications supplied by the Company pursuant to a contract shall be deemed to be the specification of the goods current at the date of their delivery. All drawings, brochures, catalogues, illustrations and other like material are issued by the Company by way of general description only and remain the property of the Company at all times. No performance details, power rating, capacity, output, dimensions nor other particulars of the goods nor of their operation (whether contained in such descriptive material or not) shall form part of any contract of sale with the Company or otherwise bind the Company unless included in the forming part of an official quotation issued by the Company.
3. PRICES
The Company’s published prices are net prices for delivery of the goods at Mount Maunganui or such other place as may be agreed upon. All prices are subject to alteration without notice. Any cost, charges or expenses (including cost of packing) incurred by the Company incidental to the supply of goods pursuant to a contract shall be extra charges to be paid by the purchaser at the time of payment of the goods.
4. LICENSES AND PERMITS
If the performance of the contract requires a license or other permit of any Government authority the purchaser is responsible for obtaining such license or permit and the contract shall be conditional upon such license or permit being available at the time specified by the company and if not then available the contract may be cancelled at the option of the company. The purchaser shall be liable for any costs incurred by the Company in execution of the contracts up to its date of cancellation. In the event of a contract being cancelled in pursuance of the terms of this paragraph 4, then except for the Purchaser’s liability to the Company for any costs incurred by the Company in the execution of the contract up to the date of cancellation, neither the Company nor the Purchaser shall have any claim whatsoever against the other arising out of such cancellation. The purchaser will exercise all due efforts to have any necessary license or permit issued.
5. DELIVERY
The Company will use all reasonable means to make delivery on the date wanted as indicated on the face of this order but it is understood and the Purchaser agrees that the Company shall have no liability whatsoever for loss or damage arising out of delivery later than the date wanted; and in the event the Company’s performance of this agreement is, in whole or in part, prevented or abnormally hindered or the cost thereof abnormally increased by any cause whatsoever which is reasonably beyond the Company’s control the Company shall have the right to cancel, without liability on its part, the entire or any portion of this agreement so affected. The Purchaser shall take delivery within seven days of receipt by the Purchaser of notification from the Company that the goods specified by the company are ready for delivery. In the event of failure of the Purchaser to take delivery of any of the specified goods at the stipulated time and place the Purchaser shall be liable to the Company for:
(a) All charges incidental to the storage of the goods; and
(b) Interest on the purchase price at the rate of thirty percent per annum calculated from the date of delivery notification.
If after a period of not less than fourteen days from the date of delivery notification the Purchaser has failed to take delivery of the goods the Company shall have the right to dispose of the goods to a third party and to recover from the Purchaser. (in addition to any costs of storage and of interest):
(i) the amount if any, by which the disposal proceeds are less than the selling price under the contract of sale ; and
(ii) any expenses, cost or losses incurred by the Company.
6. TERMS OF PAYMENT
A deposit of 10% of the contract price is required prior to work commencing. Should manufacturing take longer that or fall over the end of a calendar month the Company reserves the right to require payment on a monthly basis of 75% of the value of the work completed. Such claims will be payable on the 20th of the following month. Full payment for the goods is due and shall be made within seven days of the Purchaser receiving notification that the goods are ready for delivery. Payment shall in any event be made on or before delivery of the goods unless prior arrangements have been made with the Company. The Company’s liability under the contract shall only commence when payment has been made for the goods in accordance with the terms of the contract and shall in any event be subject to the Purchaser’s other obligations to the Company under that contract being properly observed. The parties agree that this is not a Credit Contract within the meaning of the Credit Contacts and Consumer Finance Act 2003. If the Purchaser fails to make payment on the date or dates required by this contract, the Purchaser is in default and is liable to pay penalty interest at the rate of 30% per annum on the amount outstanding.
7. OWNERSHIPS
Property in the goods shall not pass to the Purchaser until the Purchaser has paid the full purchase price to the Company to the intent that S.20 Sales of Goods Act 1908 shall no apply to this transaction. Until property passes the Purchaser permits the Company to enter the Purchaser’s property to inspect and repossess the goods. Notwithstanding the above the goods shall be at the sole risk of the Purchaser from the time of the delivery of the goods to the Purchaser. If the goods are sold or otherwise disposed of by the Purchaser prior to payment in full having been made, the Purchaser is liable in conversion, and the proceeds of such sale or disposition shall be the property of the Company.
PERSONAL PROPERTY SECURITIES ACT 1999
The Customer agrees to protect the Company’s retention of title provisions as provided in clause 7 of this Agreement and in performance of this obligation the Customer agrees:
(i) The Company may register a Financing Statement on the Personal Property Securities Register for the purpose of securing the Company’s retention of title in the goods; and
(ii) To provide the Company with all information the Company may request from the Customer to enable the Company to register a Financing Statement.
The Customer, pursuant to section 148 of the Personal Property Securities Act 1999, further agrees to waive their right to receive a copy of any verification statement received by the Company resulting from the registration of a Financing Statement.
8. CANCELLATION
If the purchaser for any reason cancels the order after its acceptance by the Company, then the Purchaser shall be liable for all costs, expenses and losses whatsoever of the Company resulting from such cancellation. In particular cancellation will only be accepted on payment of all costs and expenses incurred by the Company in the execution of the order up to the date of cancellation and until payment, cancellation of the order shall be deemed not to have taken place notwithstanding any instructions from the Purchaser to the contrary. Any payment made under the provisions of paragraph 8 to secure the cancellation of the contract, shall be without prejudice to the Company’s right to recover any other costs, expenses and losses suffered by it as a result of such cancellation.
9. EXPORT
The contract shall be in respect of goods intended for use within New Zealand and the Purchaser shall not, except with the prior written consent of the Company, such consent to be determined in the sole discretion of the Company and without the need to provide reasons, export or send the goods abroad to any place or country outside NZ (whether the Purchaser retains ownership or not). The Purchaser shall also take all reasonable precautions not to sell, offer for sale, distribute or otherwise dispose of such goods to any person, firm or corporation whom the Purchaser has reason to believe may intend to export them or send them to a place or country outside NZ. In the event if the Purchaser so exporting, sending abroad, selling or disposing of the goods within six months from the date of delivery of the goods by the Company the Purchaser shall pay to the Company a sum equal to the prevailing official selling price of the goods in that place or country outside NZ less the price paid by the Purchaser to the Company for the goods as well as the equivalent value of any export or taxation incentive receivable as a result of the goods being exported.
10. WARRANTY
The Company warrant each product to be free of defects in material and workmanship under the normal use and service for which it was intended when properly set up, the Company’s liability under this warranty being limited to making good at the Company’s factory any part or parts thereof which shall be returned to them with transportation prepaid, and which their examination shall disclose to their satisfaction to have been thus defective, provided that such parts shall be so returned to them no later than 24 months after delivery to the original purchaser. No allowance will be granted for any repairs or alterations made by the Purchaser without the Company’s written consent. This Warranty is expressly in lieu of all other warranties expressed or implied and of all other obligation or liabilities on their part and they neither assume nor authorise any other person to assume for them any other liability in connection with the sale of their product. This warranty does not apply to damages caused by overloading, misuse, neglect or accident, nor does it apply to equipment which has been repaired or altered outside of the Company’s factory in any way. No warranty is made with respect of items manufactured by others when such items are warranted by their respective manufacturers or when they are supplied by the manufacturer on special order. The Company shall not be liable for indirect or consequential loss or damage due to delay of stoppages of machinery however caused.
11. LAW OF CONTRACT
The Company and the Purchaser will endeavour to resolve any difference or dispute arising under this contract between themselves without the need for Court proceedings. Unless otherwise agreed in writing by the Company the contract shall be subject to New Zealand law.
12. COST AND VENUE
If the Purchaser is in breach of any term of the contract or in tort, the Purchaser shall pay the Company’s costs of remedying that breach or fault, including legal costs on a solicitor and client basis. If proceedings are filed in any Court by either party against the other in relation to matters arising out of this contract, whether the claims in contract or tort or otherwise, the proceedings shall be filed in the nearest appropriate Court to Mount Maunganui.
