Terms & Conditions
TERMS AND CONDITIONS OF SALE
The following terms and conditions of sale (“Terms”) shall apply in respect of each and every sale of goods made by ANZAL Limited (“ANZAL”) to the purchaser named in the Credit Application Form. Upon the purchaser submitting an order for goods, the purchaser is deemed to accept these Terms. No variation of these Terms will be accepted as binding on ANZAL unless they are written and signed by a duly authorised officer of ANZAL. All other terms, conditions, representations and warranties whatsoever expressed or implied (whether by law or otherwise), including those contained in the Sale of Goods Act 1908, are expressly excluded to the maximum extent permitted by law.
Orders for goods are subject to ANZAL's acceptance. ANZAL may accept or refuse any order in its absolute discretion.
- ORDER CANCELLATION
Cancellation of an order for goods manufactured by ANZAL may only be accepted by ANZAL if: (a) ANZAL has received written notice of cancellation prior to the commencement of manufacture of the goods; or (b) the goods form part of ANZAL's stock in trade and are not custom made.
Cancellation of an order for goods not manufactured by ANZAL may only be accepted by ANZAL if: (a) the price of the goods has increased by more than 5% between the date of the order and the date of delivery of the goods; and (b) ANZAL has received written notice of cancellation before delivery of the goods and within seven days of the increase in price.
Unless otherwise expressly agreed in writing by ANZAL, the price of the goods ordered will be the price set out in ANZAL's published price list current at the time the order is placed.
The price of the goods excludes any amount payable in respect of goods and services tax (if any), which will be paid by the purchaser in addition to the price.
- DELIVERY AND RISK
For the purposes of these Terms, the term ‘time of delivery' shall mean the date on which the goods leave the premises of ANZAL for delivery to the purchaser or, where agreed, the goods are available for collection. The risk of loss or damage to goods shall pass to the purchaser at the time of delivery. The purchaser shall be responsible for the custody and safe keeping of such goods from the time of delivery.
Any period of time or particular date of delivery of any goods is intended as an estimate only and it is agreed that ANZAL will not be liable for any loss or damage which may be sustained by the purchaser as a consequence of late delivery. Late delivery does not entitle the purchaser to cancel any order for goods.
ANZAL reserves the right to deliver the goods by instalments. Should ANZAL make a defective delivery or fail to deliver one or more instalments, this shall not entitle the purchaser to reject the goods. All claims for errors in delivery must be made to ANZAL within 7 days of delivery and in accordance with the procedures advised by ANZAL from time to time.
- PAYMENT AND OWNERSHIP
Unless otherwise expressly agreed in writing by ANZAL, all goods shall be paid for in full in cash on or before the 20th day of the calendar month immediately following the end of the calendar month in which the goods are delivered. The purchaser may not deduct or withhold any amount (whether by way of set-off, counterclaim or otherwise) from any money owing to ANZAL. If the purchaser fails to comply with these terms of payment, then (without prejudice to any other remedies that ANZAL may have) the purchaser shall pay interest to ANZAL at 2% per month calculated day to day for the period that the default continues on such part of the account as is not duly paid.
The legal and beneficial ownership in the goods shall remain with ANZAL until payment in full for all goods supplied by ANZAL has been made by the purchaser. Until ownership of the goods passes to the purchaser, the relationship between ANZAL and the purchaser shall be one of bailer and bailee, and (if required by ANZAL) the purchaser shall store the goods so that it is clear that they belong to ANZAL.
In the event that any amount owing to ANZAL in respect of the goods becomes due and payable, then (without prejudice to any other remedies that ANZAL may have), the purchaser shall permit ANZAL and its employees, officers and agents to enter upon the premises or land where any such goods may be or are supposed to be, with or without vehicles, to search for and recover such goods, and shall fully indemnify ANZAL in respect of any claim or demand arising from any act of trespass committed, or damage caused by such entry, or brought in respect of any other actions relating to the repossession of goods. If such goods are sold by the purchaser prior to payment, then the proceeds of the sale shall be the property of and shall be held in trust for ANZAL.
- SECURITY INTEREST
The purchaser grants ANZAL a continuing security interest in the goods and all the purchaser's present and future rights in relation to those goods and all proceeds, as security for payment of all amounts the purchaser owes to ANZAL and the performance of all the purchaser's obligations under these Terms (ANZAL's security interest). On ANZAL’s request, the purchaser must (at the purchaser’s sole expense) properly execute any documents, provide all necessary information, and do anything else required by ANZAL to ensure that ANZAL’s security interest constitutes a perfected security interest in the goods and their proceeds. The purchaser agrees that ANZAL may register a financing statement to protect its security interest, and that the purchaser will not change its name or other details without notifying ANZAL in writing at least 14 days before the change takes effect.
The purchaser will protect ANZAL's interest in the goods. In particular, the purchaser will: (a) put in place appropriate security precautions to protect the goods from loss, damage and destruction, including suitable insurance; and (b) not permit any other security interest to attach to the goods.
The purchaser agrees: (a) that nothing in sections 114(1)(a), 116, 120(2), 133 and 134 of the Personal Property Securities Act 1999 (PPSA) will apply to these Terms or ANZAL's security interest; and (b) to waive all its rights under sections 117(1), 119, 121, 125, 126, 127, 129, 131, 132 and 133 of the PPSA; and (c) to waive its right to receive a copy of the verification statement under the PPSA.
The purchaser shall pay all costs and expenses of any kind which ANZAL may incur in connection with any matter arising out of any breach by the purchaser (or the purchaser’s employees, contractors, agents or any other persons acting or purporting to act on the purchaser's behalf) of any provision of these Terms. The purchaser will pay all of ANZAL's costs and expenses (including legal costs and expenses incurred on a solicitor/own client basis) incurred in the enforcement of its rights or remedies under these Terms.
Goods are purchased by the purchaser on the basis that, unless otherwise expressly stated in writing, ANZAL does not warrant or imply that they are fit for any particular purpose or are of a quality or standard fit for any particular purpose, notwithstanding that the purchaser may have made known to ANZAL the particular purpose for which the goods were required or intended. The purchaser hereby acknowledges that it does not rely upon the skill or judgment or advice of ANZAL or any of its agents, officers or employees in selecting the goods, nor does it rely upon any statement or undertaking given by or on behalf of ANZAL unless it was given in writing signed by a duly authorised officer of ANZAL.
Any description of the goods given by ANZAL is given as an aid in identification of the goods. ANZAL does not warrant that the goods shall correspond precisely with any description given by ANZAL.
Should ANZAL be required to match any shade or colour, a light and dark tolerance shall be allowed to such extent as shall be agreed upon by ANZAL and the purchaser at the time the standard colour is specified and, in the absence of any such agreement, a reasonable tolerance shall be allowed.
ANZAL may charge a deposit of such amount as it considers reasonable in respect of any pallets, containers or cartons used in the delivery or packaging of the goods, and such deposit shall be payable by the purchaser when the first payment for the goods falls due. Where a deposit is charged, the pallets, containers or cartons to which it relates shall remain the property of ANZAL, and ANZAL shall be bound to refund such deposit only after the return to it of the items to which the deposit relates in good order and condition within a reasonable time of receipt by the purchaser.
The purchaser confirms that it acquires the goods for the purposes of a business and that the provisions of the Consumer Guarantees Act 1993 are therefore excluded.
Except to the extent prohibited by law, ANZAL shall not be liable in contract, tort or otherwise (including gross negligence) for any loss of profits, loss of use, loss of revenue or any other financial or economic loss (whether direct or indirect) or for any consequential or indirect loss or damage.
If, notwithstanding the provisions of these Terms, ANZAL is found to be liable to the purchaser, the liability of ANZAL (whether under the law of contract, tort or otherwise) for any loss, damage or injury arising directly or indirectly from any defect in or non-compliance of the goods supplied is (to the extent permitted by law) limited at the option of ANZAL to: (a) replacement or repair of such goods, or (b) the actual loss or damages suffered by the purchaser but not exceeding the invoice value of such defective or non-complying goods, provided always that: (i) such defect is notified to ANZAL in writing within 30 days of the purchaser’s receipt of goods, and (ii) ANZAL is given the opportunity to inspect the goods. Notwithstanding the above, ANZAL's total liability to the purchaser in relation to an order shall not exceed the invoice value of the relevant goods.
Notwithstanding any of the above, ANZAL shall not be liable at all for any loss, damage or injury arising directly or indirectly from any defect or non-compliance of the goods supplied where: (a) the goods have been repaired or altered by the purchaser or any other person without the written consent of ANZAL, or (b) the goods have not been used in accordance with the normal use of the goods or any other use expressly stated in writing to the purchaser prior to the sale of such goods.
The purchaser indemnifies ANZAL against all and any costs (including legal costs on a solicitor/client basis), expenses, losses, damages or claims by any persons whatsoever arising in any way as a result of any use by the purchaser of the goods not strictly in accordance with the normal use of the goods or any other use expressly stated in writing to the purchaser prior to the sale, any incorrect information supplied by the purchaser, or any failure of the purchaser to comply with these Terms.
If it is indicated on the Credit Application Form that the purchaser is a limited liability company or other entity and no such entity exists at the date of execution of these Terms, then the person signing these Terms and the person/s placing any orders in any capacity whatsoever or trading under the name of the purchaser shall be personally liable for all accounts due from time to time, or for such order.
In consideration of ANZAL entering into these Terms, the Guarantor named in the Credit Application Form (if any), and if there is more than one Guarantor named then jointly and severally: (a) guarantees the due, punctual and full performance by the purchaser of the purchaser's obligations under or in relation to these Terms; and (b) indemnifies ANZAL from and against any action, suit, claim, demand, cost or expense (including legal costs and expenses on a solicitor/own client basis) arising directly or indirectly as a result of any act or omission by the purchaser or any breach of the purchaser's obligations under these Terms or under any legislation, regulation or bylaw. The liability of the Guarantor/s under this clause shall constitute a principal obligation of the Guarantor/s and shall not be relieved or in any way effected in a manner prejudicial to ANZAL by any granting of time, waiver or forbearance to sue by ANZAL. This guarantee shall be a continuing guarantee and shall remain in full force and effect until all of the purchaser's obligations under these Terms are fully satisfied.
The purchaser hereby authorises ANZAL to: (a) obtain credit information about the purchaser to review the purchaser's creditworthiness and payment history from time to time; and (b) disclose credit information about the purchaser (including payment defaults) to collection agencies (including ANZAL's solicitors) or credit reporting agencies who may disclose that information to others.
These Terms will be governed by New Zealand law, and the purchaser agrees to submit to the exclusive jurisdiction of the New Zealand courts.