Terms and conditions
The General Conditions of Sale of W & R Jack Ltd (Version J2j)
In these conditions, unless expressed or implied to the contrary:
“Acceptance of Order” means the Company’s written acknowledgment that the Buyer has ordered the Equipment and that the purchase is subject to the Contract;
“Buyer” means the entity with whom the Company has contracted under the Contract, its legal personal representatives, successors and assigns;
“Cash against Invoice” means payment by cash, direct debit or bank cheque immediately upon presentation of invoice;
“Cash before Delivery” means payment by cash, direct debit or bank cheque prior to delivery;
“Company” means W & R Jack Ltd, 19 Allens Rd, East Tamaki, Auckland, New Zealand;
“Contract” means the contract between the Company and the Buyer for the sale and purchase of Equipment, comprising the Sales Proposal, these General Conditions, the Order and the Acceptance of Order;
“Equipment” means all goods and services to be supplied by the Company to the Buyer or at the Buyer’s direction under the Contract;
“General conditions” means these general conditions of sale;
“Intellectual Property” means all intellectual and industrial property rights including but not limited to all statutory, proprietary and other rights in respect of trade marks, patents, copyrights, confidential information, designs and specifications and any other rights in relation to the Equipment;
“LEADR” means the organisation called Lawyers Engaging in Alternative Dispute Resolution.
“Letter of Credit” means an Irrevocable Documentary Credit
established on terms and conditions satisfactory to the Company.
“Order” means the Buyer’s written acceptance of the Sales Proposal.
“Price” means the price for the Equipment stated in the Contract, in New Zealand Dollars unless otherwise specified;
“Sales Proposal” means the Company’s written offer to supply the Equipment to the Buyer and includes any written amendments issued by the Company prior to or simultaneous with issue of the Buyer’s Order.
2.1 All provisions of the Contract are set out in these General Conditions, the Sales Proposal, the Order and the Acceptance of Order. Verbal undertakings given by any employee or representative of the Company do not bind the Company unless confirmed by the Company in the Contract. Any clerical errors may be corrected by the Company at any time.
2.2 Any inconsistency occurring in provisions of the Contract will be resolved by the Acceptance of Order taking first precedence, followed by the Sales Proposal and then by these General Conditions.
3.1 On Acceptance of Order, the Buyer shall pay to the Company the progress payment stipulated in the Contract, by cash, direct debit or cheque unless otherwise agreed.
3.2 If the Buyer defaults on any of its obligations under the Contract, the progress payment paid under clause 3.1 shall be forfeited to the Company.
3.3 The balance of the Price (after deducting any progress payments) shall be paid by cash before delivery. In the case of machines, unless otherwise agreed, payment is required 5 business days prior to allow for delivery and installation arrangements to be confirmed.
3.4 If the Buyer fails to make any payment by the date required under the Contract, the Company may charge the Buyer compound interest calculated daily on overdue money at the rate of 5% per annum above the commercial overdraft rate (including all margins) charged to the Company by its bank from the Payment date until all money including interest has been paid in full. All money must first be applied to the payment of interest if any.
4. PRICE VARIATIONS
4.1 Unless otherwise stated, the Price is subject to the addition of Goods and Services Tax (“GST”) and any other applicable statutory imposts.
4.2 The Company may vary the Price to take account of:
4.2.1 any alteration to the Equipment manufacturer’s price list or quotation upon which the Company calculated the Price;
4.2.2 any changes in freight rates, insurance premiums,
exchange rates, rates of duty, and any other costs of supply;
4.2.3 any alteration to the specifications of the Equipment which may be required by law.
5.1 Unless otherwise agreed, delivery is effected when a carrier nominated by the Buyer uplifts the Equipment for carriage to the Buyer’s place of business or other nominated destination. If the Buyer fails to nominate a carrier after receiving five business days notice to do so, the Company may nominate a carrier but the carrier so nominated shall be the agent of the Buyer. The Company shall not be the Buyer’s agent for the arrangement of carriage or insurance unless otherwise agreed, and if so agreed the Company is bound only to make reasonable arrangements.
5.2 Delivery dates quoted by the Company are given in good faith, but time is not of the essence in respect of delivery of the Equipment and no claim may be made relating to it; nor may the Buyer cancel the Contract.
5.3 The Company may cancel or suspend delivery of the Equipment due to any fact, cause, thing or event beyond the Company’s reasonable control. The Company is not in breach of the Contract if it does so.
6.1 The risk of loss or damage to the Equipment passes to the Buyer from the time the Company or its agent despatches the Equipment to the Buyer’s place of business or other nominated address.
7.1 The Company warrants that all new Equipment will comply with the manufacturer’s specifications which are current at the time of manufacture.
7.2 The Buyer acknowledges that it has satisfied itself that the functionality of the Equipment supplied in accordance with clause 7.1 will be suitable for its particular purpose.
7.3 Provided the provisions of clause 7.5 are satisfied, the Company warrants new Equipment against defective materials and workmanship for 12 months from the date of delivery to the Buyer, or for a period which is correspondingly shorter on a pro rata basis if the Equipment is operated for more than one 8 hour shift per day.
7.4 The Company offers no warranty in respect of secondhand Equipment and does not promise that such Equipment is fit for any particular purpose. Where the Company agrees to commission secondhand Equipment this does not imply that the Company warrants the condition or performance of such Equipment and any costs the Company incurs in repairing, modifying or replacing parts of the Equipment shall be payable by the Buyer.
7.5 The Company gives the warranties in clauses 7.1 and 7.3 if, and only if:-
7.5.1 the Buyer has made all payments due under the contract
7.5.2 no repairs, replacements or modifications have been carried out without the prior written consent of the Company other than those made by the Company or its agents;
7.5.3 the Company has been notified of any defect in the
Equipment within seven days of the defect becoming apparent;
7.5.4 where parts have been replaced, the Company has had the option of requiring the return of the parts to establish the claim, with freight paid by the Buyer in advance; and
7.5.5 the Company receives a written claim from the Buyer not later than 30 days after the warranty given in clause 7.3 expires.
7.6 If the Company accepts a claim against the warranties in clauses 7.1 or 7.3 as substantiated, the Company will, at its option, repair, modify or replace the Equipment or refund in full the Price paid by the Buyer in exchange for return of the Equipment to the Company. Costs of materials, labour and freight in respect of substantiated claims will be borne by the Company.
7.7 Except as required by law, the Company gives no warranties beyond those expressly given in this contract.
7.8 If warranties beyond those expressly given in this contract are required by law, the Company’s liability is limited to, at its option, the repair, modification or replacement of the Equipment or the refund in full of the Price paid by the Buyer in exchange for the return of the Equipment to the Company.
8.1 The buyer agrees that until it has paid all money it owes to the Company in immediately available funds:
8.1.1 the Equipment remains the property of the Company;
8.1.2 the Equipment is held by the Buyer as a fiduciary bailee of the Company;
8.1.3 the Buyer must store the Equipment separately and so that it is readily identifiable as the property of the Company;
8.1.4 the Equipment may not be sold by the Buyer except with the prior written consent of the Company;
8.1.5 the Buyer or its agents must not encumber or grant a security interest over the Equipment.
8.2 If the Buyer fails to make any payment by the date required under the Contract or if the Buyer commits an act of bankruptcy or has a receiver or manager appointed over any of its assets or goes into liquidation (including provisional liquidation) or any similar event occurs, without affecting any rights of the Company:
8.2.1 the Company is entitled by written notice to the Buyer to terminate the Contract , and on termination shall not be obliged to supply the Equipment;
8.2.2 the Company is entitled to enter any premises to retake possession of the Equipment and the Buyer must indemnify the Company upon demand from and against all loss, damage, costs or expenses incurred by the Company in retaking possession of the Equipment and arranging its resale.
9. INSTALLATION AND OPERATION
Unless otherwise agreed installation of and putting the Equipment into operation is not included in the Price and does not form part of the Contract.
10.1 If the Buyer believes the Company has invoiced it for Equipment it has not received, notice to the Company must be given within 14 days from the date of the Invoice.
10.2 Under no circumstances is the Company liable to the Buyer or any other person for any indirect, special or consequential loss or damage.
11. INTELLECTUAL PROPERTY
All Intellectual Property rights remain vested in the company.
The Buyer will not permit or allow any Intellectual Property of the Company nor any modified version to be disclosed to or used by any third party.
12. DISPUTE RESOLUTION
12.1 In the event of any dispute arising out of this Contract, the parties shall, without prejudice to any other rights they may have under this Contract or at law, explore whether the dispute can be resolved between them using informal dispute resolution techniques such as negotiation, mediation, or independent expert appraisal. The rules governing any such technique shall be as agreed between the parties, or if the parties cannot agree, as used by LEADR.
13.1 This Contract is governed by the laws of New Zealand. Each party irrevocably and unconditionally submits to the jurisdiction of the courts of New Zealand.
13.2 Headings are inserted for convenience and do not affect the construction of these General Conditions
13.3 In these General Conditions the singular includes the plural and vice a versa. Words importing one gender include the other. A person includes a firm, partnership, joint venture, association, corporation or other corporate body.
13.4 If any provision of this Contract is or becomes illegal, invalid, void, voidable or unenforceable, neither the legal validity nor enforceability of the remaining provisions shall be affected.
13.5 If a party consists of more than one person this Contract binds them jointly and each of them severally.
13.6 All notices to be given to or demands to be made upon any party to this Contract must be in writing and delivered in person or sent by mail or facsimile to the current business address of the party. All notices are deemed served 48 hours after the date of posting or if delivered personally, on the actual date of receipt or if sent by facsimile, in the normal course of transmission.
14.1 All costs incurred by the Company in enforcing its rights under this Contract shall be payable by the Buyer by cash against invoice.
14.2 Any licence, permit, certificate or approval required to enable the Buyer to operate, use or resell the Equipment must be obtained by the Buyer at its expense.