Terms of Trade for TL Parker Limited
Terms of Trade
T L PARKER LIMITED
WHERE THE GOODS AND/OR SERVICES SUPPLIED PURSUANT TO THIS AGREEMENT ARE SUPPLIED FOR THE PURPOSE OF A BUSINESS THEN THE PROVISIONS OF THE CONSUMER GUARANTEES ACT 1993 WILL NOT APPLY
1. ACCEPTANCE AND TERMS
1.1 Unless otherwise agreed in writing by T L PARKER Limited (“The Company”), the following are the Company’s Terms and Conditions of Sale for the sale of any and all Products to the Purchaser.
1.2 The Company agrees to sell and the Purchaser agrees to buy the Products referred to in the applicable Order Form at the price stated in the applicable Order Form to be delivered to the place stated in the applicable Order Form at the time and manner stated in the applicable Order Form for which payment is to be made at the time and manner stated in the applicable Order Form and as set forth in this agreement. If no address is separately stated for delivery of the Products, delivery will be deemed to be at the premises of the Company.
1.2 These Terms, together with any other terms and conditions agreed upon in writing between the Company the Purchaser will apply to all sales of Products by the Company to the Purchaser.
1.3 The Purchaser accepts that these Terms and Conditions of Sale are applicable to all sales whether or not they appear on invoices or delivery documents and are hereby incorporated by reference into all such transactions and agreements. The placing of an order will be deemed to be acceptance of the terms and conditions set out herein.
2. PRICE AND ORDERS
2.1 Prices for the Products may be altered by the Company without notice from time to time. Applicable prices will be advised at the time of ordering. Any variations in the prices for Products will be advised by the Company’s website.
2.2 The Company reserves the right to refuse to accept any order or any part of an order, and to deliver Products by instalment, in which case each instalment will comprise a separate contract and will be paid for as if it were a separate order.
2.3 All prices for Products are exclusive of GST and other taxes and duties unless otherwise noted.
2.4 Discounts may be offered by the Company from time to time. Any offer of discount on an order to purchase Products will be applicable to that order only and in no way binding on the Company in any subsequent or future orders.
2.5 To be eligible for discounts the Purchaser’s account must be current.
3. RISK, DELIVERY AND INSURANCE
3.1 Delivery of the Products will be deemed to occur when the Products are delivered to the Purchaser or Purchaser’s premises by the Company or its agent at the location specified by the Purchaser, or when the Purchaser or any employee or agent of the Purchaser takes possession of the Products, whichever occurs first.
3.2 The risk in the Products shall pass to the Buyer upon delivery.
3.3 The Company will make every effort to ensure delivery of Products is on time but will not be liable for any loss or damage, including (without limitation) consequential loss arising in any way from any delay in delivery.
3.4 While the Products continue to secure the Purchaser’s Indebtedness and Obligations [as such term is defined in clause 7.2], the Purchaser must keep the Products insured in the names of The Company and the Purchaser for their respective rights and interest and must produce to the Company, upon demand, such evidence as the Company may require to confirm the existence of such insurance. If the Purchaser defaults in complying with its obligations under this clause, the Company may insure the Products and the cost of effecting such insurance must be paid by the Purchaser to the Company upon demand.
4. DAMAGE, DEFECTS & LOSS IN TRANSIT
4.1 Complaints and claims must be made in writing to the Company by the Purchaser within forty-eight (48) hours of delivery. Failure to obtain a receipt of Products delivered will not be proof of non-delivery, short delivery or of any defect.
4.2 The Company has the right in its discretion in respect of any accepted claim to replace the Products or to provide a credit to the Purchaser’s account to the value of the appropriate portion of the purchase price in full discharge all its legal liabilities.
4.3 The Company is not liable for any loss, direct or indirect, or consequential, attributable to defective Products except to the amount of the price for those Products as sold to the Purchaser.
5. PAYMENT TERMS
5.1 Payment for any order of Products is due in full in cash on or before delivery.
5.2 Where the Company has agreed to extend credit to the Purchaser, payment is due on the 20th of the month following delivery unless varied in writing by the Company.
5.3 Payment by cheque or by any type of bank transfer will not be considered payment until the payment has been fully cleared through the banking system into the Company’s bank account.
5.4 Time for payment is of the essence. If the Purchaser fails to make any payment on the due date then without prejudice to any of the Company’s other rights the Company may:
(a) suspend or cancel all deliveries of Products to the Purchaser without notice and/or treat this agreement as repudiated by the Purchaser; and/or
(b) appropriate any payment made by the Purchaser to such of the Products (or goods supplied under any other agreement with the Purchaser) as the Company may in the Company’s sole discretion think fit. The Company may at its sole discretion apply payments made by the Purchaser first in payment of default interest and secondly in reduction of invoiced amounts. The Company is entitled to recover from the Purchaser any discount given to the Purchaser for any goods for which the Purchaser is in default.
(c) Events of default for the purposes of section 109 of the Personal Property Securities Act 1999 include: failure to pay amounts due, failure of the Purchaser to comply with any other obligation owed to the Company, or in the Company’s opinion the Purchaser is likely to be unable to meet its obligations to the Company, or the Purchaser becomes insolvent or has a receiver appointed in respect of all or some of the Purchaser ‘s assets, or makes or is likely to make an arrangement with the Purchaser ‘s creditors or has a liquidator (provisional or otherwise) appointed or is placed under statutory management; a Court judgment is entered against the Purchaser and remains unsatisfied for seven (7) days; or any material adverse change in the financial position of the Purchaser takes place.
(d) In the event of a default, all amounts outstanding under all of the then current contracts between the Purchaser and the Company will, whether or not due for payment, immediately become due and payable.
5.5 If payment is not made in full by the due date the Company is entitled to charge the Purchaser interest on the unpaid overdue balance at the rate of 1.5% per month from the due date.
5.6 Products purchased on cash accounts are to be paid in full prior to the Products leaving the Company’s premises.
5.7 The Purchaser will indemnify the Company for any expenses incurred (including solicitor/client costs) in the recovery of any monies owing to the Company.
6. Online Payment
6.1 Where payment for any Products is made online, payment may be made by Visa or MasterCard. Any online purchases on account are at the sole discretion of the Company.
6.2 The Purchaser acknowledges that when ordering Products online, the Company uses a third party provider to handle all transactions. The Company will therefore not be responsible for any costs, loss, errors, omissions or liability of any kind incurred by the Customer by using the third party online payment system.
6.3 Upon completion of an online order for Products the Customer will receive an online or email verification of the order. It is up to the Customer to ensure that the order for Products is accurate. Any complaints or claims of errors or omissions must be made in writing to the Company by the Purchaser within forty-eight (48) hours of placing an order.
6.4 The Company will not be responsible for any costs, loss, errors, omissions or liability of any kind arising from the Customer’s incorrect use of the online system or any errors in the data submitted to the Company through the online ordering system.
6. PRODUCTS RETURNED FOR CREDIT
6.1 The acceptance of Products for credit will be at the sole discretion of the Company.
6.2 Products accepted for credit on return shall be returned free of all charges (freight, insurance, taxes and duties) and be accompanied by the relevant packing slip or invoice number and in the original (and undamaged) packaging and with all relevant manual and in a saleable condition.
6.3 A ‘returns charge’ of up to 15% of the price of the Products may be applied at the sole discretion of the Company.
7. SECURITY INTEREST
7.1 Ownership in the Products will not pass to the Purchaser and any proceeds of sale of the Products will belong to and be held in trust for the Company until the Purchaser has paid for the Products in full.
7.2 As security for payment for the Products and all other monies payable from time to time to the Company by the Purchaser, and for the performance by the Purchaser of all the Purchaser’s other obligations from time to time to The Company, (together the “Purchaser’s Indebtedness and Obligations”) the Purchaser grant the Company a security interest in the Products and any of the Purchaser’s present and after-acquired property including the proceeds of sale which have been supplied by the Company to the Purchaser.
7.3 The Purchaser agrees to do anything that The Company requires to ensure that the Company has a perfected security interest and (if applicable) a purchase money security interest in the Products.
7.4 The Company may allocate all amounts received from the Purchaser in any manner it determines including any manner required to preserve any purchase money security interest in the Products notwithstanding any purported allocation by the Purchaser.
7.5 While the Products continue to secure the Purchaser’s Indebtedness and Obligations the Purchaser must store the Products separately and clearly identify the Products as being subject to the Company’s security interest.
7.6 The Purchaser agrees that nothing in sections 114(1)(a), 133 and 134 of the PPSA will apply in this agreement or the security under this agreement and waives the Purchaser’s rights under sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
7.7 The Purchaser waives the right to receive a copy of the verification statement confirming registration of a financing statement or financing change statement relating to the security interest under this agreement.
7.8 The Purchaser must advise the Company immediately if the Purchaser commits any of the acts specified in clause 5.4 or of any action by third parties (including any of its creditors) affecting the Company’s security interest in the Products.
8. PRODUCTS ON APPROVAL
8.1 Products supplied “on approval” will be supplied at the Company’s discretion only and with a valid Purchaser order number. All Products supplied “on approval” will be returned to the Company on demand.
8.2 Where Products have not been returned upon demand an Invoice will be generated. Products supplied “on approval” will be subject to the conditions as to risk (ante).
9.1 The Company accepts no liability where, in the Company’s reasonable opinion, any Products have been misused in any way or poorly maintained. To the fullest extent permitted by law, the Company accepts no liability (whether statutory, in contract or tort (including negligence), or howsoever) for any physical, or special damage, direct loss, indirect loss, economic loss of any kind (including loss of profits and expectation loss), any other loss or costs (including legal and solicitor/client costs) caused or contributed to by the Company in respect of the Products or any quotation or estimate given.
9.2 At all times, the Company’s liability is limited, at its option to:
(a) repairing the Products;
(b) replacing the Products; or
(c) subject to clause 9.3, refunding the Purchaser for the cost for the Products.
9.3 The maximum liability (if any), whether in contract, tort or otherwise, in relation to claims, damages, liabilities, losses or expenses, shall be the value of the Products (exclusive of GST and Disbursements) with a maximum limit of $10,000.
10.1 Wherever the Purchaser is a limited liability company, each and every Director thereof will enter into a personal indemnity and/or guarantee as required on the Credit Account Application Form and such personal guarantee is to be read in conjunction herewith.
11. PRIVACY ACT
11.1 The Purchaser hereby accepts and agrees that as a condition of trade the Company may and is hereby authorised to seek and obtain information on its customers from its credit and other agencies and in the case of debtors to provide details of such to the company’s credit and debt collection agencies.
12.1 The Company reserves the right to vary the Terms and Conditions by written notice to the Purchaser whereupon such variations will thereafter apply to subsequently supplied Products.
12.2 Subject to the Company’s order form and Credit Account Application Form which incorporates by reference the Terms and Conditions contained herein, where the Terms and Conditions are at variance with any other documents relating to the order of the Products specified herein (including a Purchaser’s order form), the Terms and Conditions shall prevail. Any usage of trade, special agreement, or course of dealing between the parties at variance with the terms of this agreement are excluded.
12.3 If any term of this agreement is illegal, invalid or unenforceable for any reason whatsoever including, but without limitation, legislation or other provisions having the force of law or any decision of any court or other body or authority having jurisdiction, such term will be deemed to be deleted from this agreement on condition that if either party considers that any such deletion substantially affects or alters the commercial basis of this agreement it may give notice in writing to the other to terminate this agreement immediately.
12.4 Any notice, document, request, demand or other communication (“notices”) to be given for the purposes of this agreement must be in writing. The Company may give written notices by email. Time is of the essence.
12.5 The Company may also delay delivery due to force majeure conditions including an act of God, fire, act of government or state, war, civil commotion, insurrection, embargo, prevention from or hindrance in obtaining any raw materials, energy or other supplies, labour disputes of whatever nature and any other reason beyond the control of the Company.
12.6 The law of New Zealand including the Contract and Commercial Law Act 2017 and its amendments shall apply to this agreement except to the extent expressly negatived or varied by this agreement.
12.7 If the Company grants the Purchaser any time, release or other indulgence, the Company reserves the right to later enforce that obligation or any other term or condition.
(a)“Order Form” means the delivery docket and/or tax invoice used by the Company or any online equivalent produced through the Company’s online order systems (e.g. an online shopping cart). If there is a conflict between the Order Form and tax invoice, the tax invoice prevails.
(b)“Product” means any and all goods or products and/or accessories supplied or to be supplied by the Company to the Purchaser pursuant to a relevant Order Form.
(c)“Purchaser” means any person who places an order for Products from the Company either directly or online.
(d)“Company” means T L PARKER Limited together with the Company’s staff, agents and people acting on behalf of.
(e)“Terms & Conditions” means the terms and conditions of sale of the Company specified herein.
(f)Headings are inserted for convenience and reference only and shall not affect the meaning or interpretation of this agreement.
13. RESOLUTION OF DISPUTES
13.1 Consumer arbitration agreement:
(a)This agreement contains an arbitration agreement.
(b)The Purchaser, if purchasing as a consumer as defined in the Arbitration Act 1996, certify that: having read and understood the arbitration agreement, and the variation of the default rules in the 2nd Schedule to the Arbitration Act 1996, and agrees to be bound by the arbitration agreement.
13.2 If the parties are unable to resolve any question, dispute of difference arising under this agreement, by discussion and negotiation, the dispute must be submitted to the arbitration of a single arbitrator agreed on between the parties, or in default of agreement, to be nominated by the president of the New Zealand Law Society PROVIDED HOWEVER that the Company has the right to refer any dispute to the Disputes Tribunal for determination in which case the total amount in respect of which an order of the Tribunal is sought will not exceed $15,000.00.