1. Definitons:

1.1 “Delivery” shall mean delivery to the purchasers address (whether or not the seller is installing the goods) or by loading where the purchaser arranges own transport.

1.2 “Default interest rate” means 14% per annum.

1.3 “Goods” shall mean Goods described in the Schedule authorisation or any other forms as provided by the Seller to the Buyer.

1.4 “Guarantor” shall mean the person, persons or entity set out in the schedule.

1.5 “Price” shall mean the price payable for the Goods as agreed between the Seller and the Buyer and set out in the Schedule.

2. Acceptance

2.1 Any instructions received by the Seller from the Buyer for the supply of Goods and/or the Buyer’s acceptance of Goods supplied by the Seller shall constitute acceptance of the terms and conditions contained herein.

2.2 Where more than one Buyer has entered into this agreement, the Buyers shall be jointly and severally liable for all payments of the Price.

2.3 Upon acceptance of these terms and conditions by the Buyer the terms and conditions are binding and can only be amended with the written consent of the Seller.

2.4 If there is any conflict between the terms set out herein and any put forward by the buyer, these terms shall prevail.

3. Price and Terms of Payment

3.1 The Buyer shall pay the Price as set out in the Schedule.

3.2 At the Seller’s sole discretion a deposit may be required.

3.3 Payment is due seven days following the date of delivery of the goods time being of the essence.

3.4 Payment will be made by cash, or by cheque, or by direct credit to the Sellers bank account.

3.5 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

4. Delivery Of Goods

4. 1 At the Seller’s sole discretion delivery of the Goods shall take place when the Buyer takes possession of the Goods at the Buyer’s nominated address (in the event that the Goods are delivered by the Seller or the Seller’s nominated carrier).

4.2 The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.

4.3 The Seller shall not be liable for any loss or damage whatsoever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of the Seller.

5. Ownership and Risk

5.1 Risk in the Goods will pass to the Buyer on delivery even though ownership of the Goods may not have passed to the Buyer.

5.2 The Buyer will insure the Goods from the time of delivery. If the Goods are damaged or destroyed following delivery but prior to ownership passing to the Buyer the Seller is to receive all insurance proceeds payable for the Goods.

5.3 The Seller and Buyer agree that ownership of the Goods shall not pass until the Buyer has paid the Seller in full together with any other amounts owing to the Seller and that the Buyer has complied with all other obligations.

5.4 It is further agreed that the Buyer is only a Bailee of the Goods until full payment has been received by the Seller. Should the Buyer sell the Goods the Buyer will hold such proceeds from the sale on Trust for the Seller.

6. Defects

6.1 The Buyer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Seller of any alleged defect, damage or failure to comply with the description or quote. The Buyer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Buyer believes the. Goods are defective in any way. If the Buyer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Seller has agreed in writing that the Buyer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods or repairing the Goods.

7. Warranty and Limitation of Liability

7.1 The seller provides a two (2) year warranty in relation to the installation and manufacture of the goods but this warranty does not extend to the material of the goods or any automatic door opener or other control unit (which are  warranted by the manufacturer).

7.2 The Seller will not be responsible for any defect or damage which may be caused or partly caused by or arise through
(a)failure on the part of the Buyer to properly maintain any Goods; or
(b)failure on the part of the Buyer to follow any instructions or guidelines provided by the Seller; or (c)any use of any Goods otherwise than for any application specified in the Schedule; or
(d)the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(e)fair wear and tear, any accident or act of God; or
(f) the Goods have been added to or repaired using components not recommended or approved by the Seller

7.3 The warranty shall cease and the Seller shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Seller’s prior written consent.

8. Consumer Guarantees Act 1993

8.1 If the Buyer is acquiring Goods for the purposes of a trade or business the Buyer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply as the supply of Goods by the Seller to the Buyer is for the purposes of trade or business.

9. Default

9.1 In the event that the Buyer’s payment is dishonoured for any reason the Buyer shall be liable for any dishonour fees incurred by the Seller.

9.2 If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in pursuing the debt including legal costs on a solicitor and own client basis and the Seller’s collection agency costs.

9.3 Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Buyer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller has exercised its rights under this clause.

9.4 If any account remains overdue after fourteen (14) days then interest shall be charged at the rate set ou.t on the Schedule.

9.5 Without prejudice to any other remedies the Seller may have, the Seller may recover and/or resell any of the Goods and the Buyer irrevocably authorizes the Seller, its Agents and servants to enter the premises where the Seller believes the Goods are stored at any time without notice and repossess the Goods. The Seller may only recover and resell for its own account sufficient Goods to satisfy the unpaid liabilities and the costs of resale. Should the seller recover any excess, the Seller will not be liable in damages to buyer that must account to the Buyer for the excess.

9.6 Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Buyer which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable in the event that:

(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will be unable to meet its payments as they fall due; or
(b) the Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer; or ·
(d) the Buyer no longer carries on business or threatens to stop carrying on business; or
(e) the Seller in its sole opinion believes the Goods are at risk.

10. Cancellation

10.1 The Seller may ·cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Buyer. On giving such notice the Seller shall repay to the Buyer any sums paid in respect of the Price. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation.

10.2 In the event that the Buyer cancels delivery of the Goods the Buyer shall be liable for any loss incurred by the Seller (including, but not limited to, any loss of profits) up to the time of cancellation.

10.3 Cancellation of Goods made to Buyer specification will not be accepted once manufacture has commenced.

11. Assignment

11.1 The Buyer shall not assign any of its rights or interests or any part thereof under this Agreement to any person at any time. The Seller may at any time assign its rights or interest or any part thereof under this Agreement or transfer its obligations or any part thereof to any persons.

12. Notices

12.1 Notices shall be properly served on an individual, company, corporation, partnership, Trust, organisation or other entity if delivered by hand or left at or posted in any prepaid letter correctly addressed at-the address shown on the invoice. Service by post shall be deemed to be effected on the third day after the day on which the Notice was posted.

13. lndemnity

13.1 The Buyer shall indemnify and keep indemnified the Seller from any loss, damage or cost that the Seller suffers or incurs in consequence of a breach of this agreement by the Buyer or any negligent act or omission on the part of or otherwise caused by the Buyer.

14. Set-off

14.1 The Buyer shall indemnify and keep indemnified the Seller from any loss, damage or cost that the Seller suffers or incurs in consequence of a breach of this agreement by the Buyer or any negligent act or omission on the part of or otherwise caused by the Buyer.

15. General

15.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

15.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand.

15.3 The Seller shall be under no liability whatsoever to the Buyer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by the Seller of these terms and conditions.

15.4 In the event of any breach of this contract by the Seller the remedies of the Buyer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.

15.5 The Seller may license or sub-contract all or any part of its rights and obligations without the Buyer’s consent.

15.6 The Seller reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Seller notifies the Buyer of such change.

15.7 The provisions of the Contractual Remedies Act 1979 shall apply to this contract as if section 15(d) were omitted from the Contractual Remedies Act 1979.