1.1. “Supplier” means dbsorb Limited
1.2. “Customer” means the person or entity signing an Application for Credit or making an Order and any person acting with ostensible authority on behalf of the party named as the Customer;
1.3. “Goods” means goods supplied by the Supplier to the Customer at any time;
1.4. “Price” means the Price payable for the Goods as agreed between the Supplier and the customer in accordance with clause 5 below.
2.1. The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
2.2. These terms and conditions may only be amended with the Supplier’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and the Supplier.
3. Electronic Transactions Act 2002
3.1. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 22 of the Electronic Transactions Act 2002 or any other applicable provisions of that Act or any Regulations referred to in that Act.
4. Change in Control
4.1. The Customer shall give the Supplier not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by the Supplier as a result of the Customer’s failure to comply with this clause.
5. Price and Payment
5.1. At the Supplier’s sole discretion, the Price shall be either: as indicated on any invoice provided by the Supplier; or the Supplier’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
5.2. The Supplier reserves the right to change the Price. Any variation from the plan of scheduled Service or specifications (including, but not limited to, any variation as a result of additional works required due to hidden or unidentifiable, overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges, inaccurate measurements provided by the Customer, or as a result of increases to the Supplier in the cost of materials and labor) will be charged for on the basis of the Supplier’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion in accordance with original contract payment terms unless otherwise documented in writing.
5.3. At the Supplier’s sole discretion, a non-refundable deposit may be required.
5.4. Time for payment Unless otherwise specified, payment for all Goods will be made no later than: (a) On supply for Customers without an Account (b) the 20th day of the month following supply for Customers with an Account;
5.5. Payment may be made by electronic/on-line banking, or by any other method as agreed to between the Customer and the Supplier.
5.6. Unless otherwise stated, the Price does not include GST.
6. Delivery of Goods
6.1. Where an Order makes provision for delivery, then delivery will take place at the place stated in the Order. If no place is indicated, then delivery will be made at the physical address of the Customer set out in the Order or Application for Credit.
6.2. If the Customer is not in a position to accept or take delivery of the Goods as scheduled, the Customer will be responsible for all additional charges caused thereby.
6.3. The Supplier shall make every effort to effect delivery in accordance with pre-arranged dates but no guarantee is implied as to delivery dates nor will the Supplier be liable for any loss or damage arising from delays in delivery howsoever caused and whether in respect of the whole or part of the goods ordered and a delay in delivery shall not entitle the Customer to cancel the Contract.
6.4. Delivery of Goods by the Supplier to a carrier is deemed to be delivery to the Customer.
6.5. The Customer must notify the Supplier within two working days of delivery of any shortfall in Goods supplied, time being of the essence.
7.1. Risk of damage to or loss of the Goods passes to the Customer on Delivery, and the Customer must insure the Goods on or before Delivery.
7.2. If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Supplier is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Supplier is sufficient evidence of the Supplier’s rights to receive the insurance proceeds without the need for any person dealing with the Supplier to make further inquiries.
7.3. If the Customer requests the Supplier to leave Goods outside the Supplier’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Customer’s sole risk.
7.4. The Customer acknowledges that Goods supplied may exhibit variations in shade, color, texture, surface, and finish, and may fade or change color over time. The Supplier will make every effort to match batches of product supplied in order to minimize such variations but shall not be liable in any way whatsoever where such variations occur.
7.5. Where the Supplier is required to install the Goods, the Customer warrants that the structure of the premises or equipment in or upon which these Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto, and the Supplier shall not be liable for any claims, demands, losses, damages, costs, and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation.
8. Accuracy of Customer’s plans
8.1. The Supplier shall be entitled to rely on the accuracy of any plans, specifications, and other information provided by the Customer. The Customer acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate, the Supplier accepts no responsibility for any loss, damages, or costs, however resulting from these inaccurate plans, specifications, or other information.
9. Customer’s Responsibilities
9.1. It is the Customer’s responsibility to have all areas clean and clear to enable scheduled services to be completed in accordance with the installation plan. Remove all fragile items. Breakages and damages are the responsibility of the Customer. All care taken but no responsibility accepted by the Supplier in this regard. The Supplier will not accept any responsibility for cleaning or repair costs attributed to dust or damage caused by any process.
10.1. The Customer shall ensure that the Supplier has clear and free access to the work site at all times to enable them to undertake the Services. The Supplier shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways, and concreted or paved or grassed areas) unless due to the negligence of the Supplier.
11.1. The Supplier and the Customer agree that ownership of the Goods shall not pass until: (a) the Customer has paid the Supplier all amounts owing to the Supplier; and (b) the Customer has met all of its other obligations to the Supplier.
11.2. Receipt by the Supplier of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honored, cleared, or recognized.
11.3. It is further agreed that: (a) until ownership of the Goods passes to the Customer in accordance with clause 11.1 that the Customer is only a bailee of the Goods and must return the Goods to the Supplier on request. (b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for the Supplier and must pay to the Supplier the proceeds of any insurance in the event of the Goods being lost, damaged, or destroyed. (c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for the Supplier and must pay or deliver the proceeds to the Supplier on demand. (d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of the Supplier and must sell, dispose of, or return the resulting product to the Supplier as it so directs. (e) the Customer irrevocably authorizes the Supplier to enter any premises where the Supplier believes the Goods are kept and recover possession of the Goods. (f) the Supplier may recover possession of any Goods in transit whether or not delivery has occurred. (g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Supplier. (h) the Supplier may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
12. Personal Property Securities Act 1999 (“PPSA”)
12.1. Upon assenting to these terms and conditions in writing, the Customer acknowledges and agrees that: (a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and (b) a security interest is taken in all Goods previously supplied by the Supplier to the Customer (if any) and all Goods that will be supplied in the future by the Supplier to the Customer.
12.2. The Customer undertakes to: (a) sign any further documents and/or provide any further information (such information to be complete, accurate, and up-to-date in all respects) which the Supplier may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register; (b) indemnify, and upon demand reimburse, the Supplier for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby; (c) not register a financing change statement or a change demand without the prior written consent of the Supplier; and (d) immediately advise the Supplier of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
12.3. The Supplier and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
12.4. The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131, and 132 of the PPSA.
12.5. Unless otherwise agreed to in writing by the Supplier, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
12.6. The Customer shall unconditionally ratify any actions taken by the Supplier under clauses 12.1 to 12.5.
13. Security and Charge
13.1. In consideration of the Supplier agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
13.2. The Customer indemnifies the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Supplier’s rights under this clause.
13.3. The Customer irrevocably appoints the Supplier and each director of the Supplier as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 13, including, but not limited to, signing any document on the Customer’s behalf.
14.1. The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Supplier of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Supplier an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer 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 Supplier has agreed in writing that the Customer is entitled to reject, the Supplier’s liability is limited to either (at the Supplier’s discretion) replacing the Goods or repairing the Goods.
15.1. Returns will only be accepted provided that: (a) the Customer has complied with the provisions of clause 14.1; and (b) the Supplier has agreed in writing to accept the return of the Goods; and (c) the Goods are returned at the Customer’s cost within seven (7) days of the delivery date; and (d) the Supplier will not be liable for Goods which have not been stored or used in a proper manner; and (e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures, and instruction material in as new condition as is reasonably possible in the circumstances.
15.2. The Supplier will not accept the return of Goods for credit.
15.3. Non-stocklist items or Goods made to the Customer’s specifications are under no circumstances acceptable for credit or return.
16.1. Subject to the conditions of warranty set out in clause 16.2, the Supplier warrants that if any defect in any workmanship of the Supplier becomes apparent and is reported to the Supplier within two (2) years of the date of delivery (time being of the essence) then the Supplier will either (at the Supplier’s sole discretion) replace or remedy the workmanship.
16.2. The conditions applicable to the warranty given by clause 16.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through: (i) failure on the part of the Customer to properly maintain any Goods; or (ii) failure on the part of the Customer to follow any instructions or guidelines provided by the Supplier; or (iii) any use of any Goods otherwise than for any application specified on quote or order form; or (iv) the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or (v) fair wear and tear, any accident, or act of God.
(b) the warranty shall cease, and the Supplier shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered, or overhauled without the Supplier’s consent.
(c) in respect of all claims, the Supplier shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.
16.3. For Goods not manufactured by the Supplier, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Supplier shall not be bound by nor be responsible for any term, condition, representation, or warranty other than that which is given by the manufacturer of the Goods.
16.4. The conditions applicable to the warranty given on Goods supplied by the Supplier are contained on the “Warranty Card” that will be supplied with the Goods.
17. Consumer Guarantees Act 1993
17.1. If the Customer is acquiring Goods for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by the Supplier to the Customer.
18. Intellectual Property
18.1. Where the Supplier has designed, drawn, or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of the Supplier.
18.2. The Customer warrants that all designs, specifications, or instructions given to the Supplier will not cause the Supplier to infringe any patent, registered design, or trademark in the execution of the Customer’s order, and the Customer agrees to indemnify the Supplier against any action taken by a third party against the Supplier in respect of any such infringement.
18.3. The Customer agrees that the Supplier may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, or Goods which the Supplier has created for the Customer and/or photographs of the same.
19. Events of Default
19.1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Supplier’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
19.2. If the Customer owes the Supplier any money, the Customer shall indemnify the Supplier from and against all costs and disbursements incurred by the Supplier in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Supplier’s contract default fees, and bank dishonour fees).
19.3. Without prejudice to any other remedies the Supplier may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions, the Supplier may suspend or terminate the supply of Goods to the Customer. The Supplier will not be liable to the Customer for any loss or damage the Customer suffers because the Supplier has exercised its rights under this clause.
19.4. Without prejudice to the Supplier’s other remedies at law, the Supplier shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled, and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable if: (a) any money payable to the Supplier becomes overdue, or in the Supplier’s opinion the Customer will be unable to make a payment when it falls due; (b) the Customer 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 Customer or any asset of the Customer.
20.1. The Supplier 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 Customer. On giving such notice, the Supplier shall repay to the Customer any money paid by the Customer for the Goods. The Supplier shall not be liable for any loss or damage whatsoever arising from such cancellation.
20.2. In the event that the Customer cancels delivery of Goods, the Customer shall be liable for any and all loss incurred (whether direct or indirect) by the Supplier as a direct result of the cancellation (including, but not limited to, any loss of profits).
20.3. Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
21.1. The Customer irrevocably agrees that the personal information provided, obtained, and retained by the Supplier about the Customer will be held and used for the provision of Goods to the Customer;
21.2. The Supplier may provide any personal information to any third party and to obtain any information concerning the Customer from any other source;
21.3. They must notify the Supplier of any changes in circumstances that may affect the accuracy of the information provided by the Customer to the Supplier. If the Customer is a natural person, the Customer has the right of access to and correction of any personal information held by the Supplier.
22. Construction Contracts Act 2002
22.1. The Customer hereby expressly acknowledges that: (a) the Supplier has the right to suspend work within five (5) working days of written notice of its intent to do so if a payment claim is served on the Customer, and: (i) the payment is not paid in full by the due date for payment and no payment schedule has been given by the Customer; or (ii) a scheduled amount stated in a payment schedule issued by the Customer in relation to the payment claim is not paid in full by the due date for its payment; or (iii) the Customer has not complied with an adjudicator’s notice that the Customer must pay an amount to the Supplier by a particular date; and (iv) the Supplier has given written notice to the Customer of its intention to suspend the carrying out of construction work under the construction contract. (b) if the Supplier suspends work, it: (i) is not in breach of contract; and (ii) is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Customer or by any person claiming through the Customer; and (iii) is entitled to an extension of time to complete the contract; and (iv) keeps its rights under the contract, including the right to terminate the contract; and may at any time lift the suspension, even if the amount has not been paid or an adjudicator’s determination has not been complied with. (c) if the Supplier exercises the right to suspend work, the exercise of that right does not: (i) affect any rights that would otherwise have been available to the Supplier under the Contractual Remedies Act 1979; or (ii) enable the Customer to exercise any rights that may otherwise have been available to the Customer under that Act as a direct consequence of the Supplier suspending work under this provision.
23.1. If any provision of these Terms is invalid, void or illegal or unenforceable, the validity existence, legality and enforceability of the remaining provisions will not be affected, prejudiced, or impaired.
23.2. These Terms will be interpreted in accordance with and governed by the laws of New Zealand, and the New Zealand Courts will have exclusive jurisdiction over any dispute in relation to the Goods.
23.3. The Supplier shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Supplier of these terms and conditions (alternatively the Supplier’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
23.4. The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Supplier nor to withhold payment of any invoice because part of that invoice is in dispute.
23.5. The Supplier may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
23.6. The Supplier may from time to time by written notice to the Customer amend, add to, or repeal the trading conditions covered by these Terms or may substitute any fresh trading conditions, and such amendment, addition, or substitute trading conditions will be binding on the Customer fourteen days after the date of delivery of the notice.
23.7. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, or other event beyond the reasonable control of either party.
23.8. The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorizations to allow it to do so, it is not insolvent, and that this agreement creates binding and valid legal obligations on it.