Terms & Conditions
1.1 These terms of contract between ORALTEC NZ LTD (the “Company”) and the Customer (the "Customer") shall apply to all orders for products (“Goods”) supplied by the Company to the Customer and that in the case of conflict or dispute these terms and conditions shall prevail and take precedence over any document or oral message from the Customer. Where the Company fails to enforce any terms or conditions under this contract the Company will not be deemed to have waived these rights with respect to any term or condition or right.
1.2 The Company and the Customer shall acknowledge that these terms of sale constitute a Security Agreement as defined by the Personal Property Securities Act 1999 (“PPSA”). For the purposes of the PPSA, Collateral shall include all and any Goods supplied and the proceeds thereof. The Customer agrees not to allow any person to file a finance statement over any of the Collateral secured by this Security Agreement without the prior written consent of the Company.
2.1 The Company shall publish a price list of its Goods ruling at the time of the order and shall endeavour, where practicable, give fourteen (14) days notice of any price changes. The Company may cancel any order without liability if it considers the order uneconomic or impractical to fulfil. All prices are exclusive of GST, insurance, freight and other handling charges.
2.2 No order requiring the special importing of Goods for the exclusive use of the Customer (meaning procured specifically for the Customer) may be cancelled without the consent of the Company, and in such cases the Customer will be liable to pay the Company all costs and expenses incurred by the Company in fulfilling the order to the date of cancellation; and if the Goods or any part of the Goods cannot be cancelled from the original manufacturer, the Customer will be held liable for the cost of the Goods ordered or prepared by the Company to the time of cancellation.
3. Delivery of Goods
3.1 Delivery by the Company to the site of the Customer shall constitute delivery. The Customer agrees that any employee or agent of the Customer who signs for delivery shall be authorised to accept delivery and the Company will not be held liable for missing Goods where a signature has proven delivery.
3.2 The Company will make every effort to ensure delivery of Goods on time but will not be liable for any loss or damage or consequential loss to the Customer arising from delays in delivery. Goods may be delivered separately and in such case each delivery will be regarded as a separate contract and subject to the same payment terms. Failure or delay by the Company in making delivery at a specified time shall not cancel or repudiate the contract.
3.3 The Company reserves the right to charge freight where the value of each order is under the Company's specified minimum order value.
4.1 The Company will invoice orders in the same month as purchased by the Customer. Payment is to be made upon delivery of the Goods, unless the Company has agreed to other credit terms in which case, payment shall be by the 20th of the month following the date of invoice or date of quotation or by other payment terms declared in the quotation and final payment is to be made in full without deduction or set off according to the terms set out in the quotation or confirmation of order.
4.2 The Customer shall agree that the Company has sole discretion to apply payments from the Customer to any transaction or Company invoice notwithstanding that the Customer may have applied the payment to a particular transaction or invoice.
4.3 If payment is not made in full by the due date, the Company is entitled to charge the Customer interest on the unpaid overdue balance at the rate of 3% per annum above the current rate charged by the Company's bank calculated from the due date of payment down to the actual date of payment, and the Company may at its option suspend the sale and secure the Goods in its possession regardless of the term of this contract until the overdue amounts are paid in full.
4.4 If at any time the Company reasonably deems the credit of the Customer to be unsatisfactory, it may require the Customer to provide security for payment and/or the Company may suspend performance of any of its obligations under this contract until security is provided to the Company's satisfaction and the Company may require the Customer to pay all costs incurred as a result of suspension and re-commencement of supply including debt collection and legal costs.
5. Risk, Ownership and Title
5.1 The Customer agrees that the Company has legal and equitable right to title in the Goods (ownership) until the contract price is paid. Regardless of ownership by the Company of the Goods, the Customer agrees to accept risk in the Goods for any loss, theft, damage or deterioration of or to the Goods upon delivery and while in the possession of the Customer. This means that the Customer agrees to properly store, protect and insure the Goods under its risk policy. Failure by the Customer to properly protect and insure the Goods shall not absolve the Customer of the legal responsibility to the Company to pay for the Goods in the event of fire or loss damage or theft while under the care and responsibility of the Customer.
5.2 This reservation of title and ownership is effective whether or not the Goods have been altered from that supplied or mixed with other goods or materials owned by the Customer. If the Goods, the subject of this contract, have become the constituent of mixed with or attached to any other goods or property of the Customer, then a proportion of the value of those goods or property shall belong to the Company. The Company authorises the Customer to use the Goods in the ordinary course of business only as the fiduciary agent and bailee of the Company until the Customer pays the Company in full without deduction or setoff.
5.3 Where Goods in respect of which title has not passed to the Customer are sold by the Customer any book debt created upon sale of such Goods and the proceeds of sale of such Goods, when received by the Customer, shall be held upon trust by the Customer for the Company and any proceeds of sale so received by the Customer shall be placed in a separate bank account and shall first be applied towards the satisfaction of all indebtedness of the Customer to the Company.
5.4 In any event where Goods remain unpaid by the Customer the Company has unreserved right to enter the premises of the Customer or its agents during normal business hours and remove Goods relating to the unpaid amount in accordance with the Credit (repossession) Act and the Customer will not hold the Company responsible for any economic or consequential loss that the Customer may suffer as a result, whether the Goods are attached to other goods or property owned by the Customer, or not.
6. Personal Property Securities Act (PPSA)
6.1 Upon signing these terms the Customer acknowledges that:
(a) These terms are a security agreement for purposes of section 36 of the PPSA, and
(b) A security interest is taken in all Goods previously supplied to the Customer by the Company and in any and all Goods that will be supplied in the future by the Company to the Customer during the continuance of the parties relationships.
(c) The Security Agreement is a continuing security and will operate irrespective of any intervening payment or settlement of account until the Company has signed a release. The security interest granted in the Collateral has the same priority in relation to all and any Goods supplied to the Customer by the Company at any time.
6.2 The Customer shall also inform its creditors of the terms upon which it buys Goods from the Company including that the Company may create and register a Purchase Money Security Interest over the Goods under the Personal Property Securities Act and that the Customer agrees to waive the right to receive a verification statement for purposes of s.148 of the Act and shall also inform any Trustee in Bankruptcy or Liquidator of the Customer or any Receiver of the Customer’s business or assets of the rights of the Company and title to the proceeds of sale.
6.3 The Customer agrees to notify the Company upon the sale of the Customer’s business or the sale of the assets of the Customer.
7. Goods Incorrectly Ordered by the Customer
Provided that Goods are not specially procured or indented to order for the Customer, the Company, at its discretion, may give credit for returned Goods that are incorrectly ordered by the Customer and which are not damaged or defective. The Company may deduct fifteen per cent (15%) of the value of the Goods as an administration and handling cost provided the Goods are delivered to the Company within fourteen (14) days after original delivery and at the Customer’s cost and in the same condition and packaging in which they were dispatched, with a copy of the invoice.
8. Warranty and Guarantees
8.1 The Company warrants that it will supply the Goods as the description defined in the labelling of the Goods or in the quotation or the data sheet or test book for each product but that it will not be held responsible for the fitness of the Goods intended by the Customer except that it will repair, or at its option replace, Goods supplied under this contract that are defective provided that the Customer notifies the Company in writing of any defect within fourteen (14) days of the defect occurring and subject to the warranty conditions.
8.2 The Company shall not be liable for any loss of profits or any consequential, indirect or special loss, damage or injury of any kind whatsoever suffered by the Customer or any other person arising directly or indirectly from any breach of any of the Company's obligations arising under or in connection with the contract including delays in the delivery of Goods or from any cancellation of the contract.
8.3 The Company shall not be liable for any breach or failure to perform any of its obligations under this contract where such breach or failure is caused by war, bad weather, adverse environmental conditions, civil commotion, hostilities, strike or lock out, act of God, fire, governmental regulations or directions, or reasons force majeure caused beyond the Company's reasonable control. The occurrence of such an event shall not give the Customer a right of cancellation of any contract.
8.4 Notwithstanding anything herein before contained elsewhere in the contract, the liability of the Company whether in contract or pursuant to any cancellation of the contract in respect of all claims for loss, damage or injury arising from breach of any of the Company's obligations or from any cancellation of this contract or from any negligence, misrepresentation or other act or omission on the part of the Company, its servants, agents or contractors, shall be linked at the Company's option to repair by a method at the discretion of the Company or replacement or the price of the Goods.
9. Claims for Damaged, Lost or Defective Goods
9.1 For Damaged Goods - The Customer agrees to notify the Companywhere Goods are damaged or part damaged in transit or are found to be damaged upon delivery within fourteen (14) days of receipt of the Goods so that the Company may inspect the Goods and/or lay claim against the carrier. The Customer agrees to notate the consignment note and/or advise the carrier’s representative that the Goods are received damaged at the time of receipt of the delivery. Failure to do so may result in a claim being denied.
9.2 For lost or short shipped goods – Where Goods appear to have been lost in transit or short shipped the Customer agrees to notify the Company within seven (7) days of receipt of the balance of Goods so that the company can initiate a track and trace process and/or lay claim against the carrier. The Customer agrees to endorse the consignment note and/or advise the carrier’s representative that the Goods are short delivered at the time of delivery. Failure to do so may result in a claim being denied.
9.3 For defective goods - The Company will accept the return of defective Goods provided that the Customer returns the Goods in their original packaging with a copy of the invoice.
Damaged or defective Goods cannot be disposed of by the Customer or its agents without the permission of the Company.
9.4 The Company will not accept any claim by the Customer for any reasons where the Customer may be prejudiced by the defect or failure of the Goods including economic loss, consequential loss or any other form of loss whatsoever and this warranty will not apply, where:
(a) The Goods have not been paid in full and according to the terms of payment.
(b) The defect or damage is due to or resulting from damage from misuse or use contrary to the printed instructions on the label or Company publications for maintenance of care, while in the possession of the Customer.
Common misuse is:
- not stocking the Goods in accordance with Company instructions or instructions on the label.
- the Goods are used for purposes other than for the description of use.
- the Goods are subject to impact during stocking.
- the Goods are used to hold loads of any type.
- the Goods are subject to excessive vibration or heat or ultra violet light.
(c) The defect or failure is caused by the Customer or a third party on behalf of the Customer attempting altering or mixing with other goods.
(d) The Customer or any third party altering the Goods in any way different to the condition in which they were supplied.
(e) The defect or failure is due to environmental conditions of the Customer’s site causing deterioration.
(f) The Goods have been disposed of without the permission of the Company.
9.5 If the Customer does not comply with the above requirements, the Customer will be deemed to have accepted the Goods and the Company will not incur any liability whatsoever in relation to the Goods.
10. Consumer Guarantees Act 1993
10.1 It is acknowledged that where the acquisition of Goods by the Customer from the Company is deemed to be for the business purposes of a business, these terms shall have the affect of contracting out of the provisions of the Consumer Guarantees Act 1993 to the extent permitted by that Act and all provisions of these terms shall be read as modified to the extent necessary to give effect to that intention.
10.2 Where the Customer resells the Goods to third party consumer purchasers, the Customer shall be mindful of its obligations under the Act to offer repair, replacement or full value of the Goods to the consumer purchaser subject to the claims conditions and upon informing the Company where damage or defects occur. The Company shall determine the option to be taken at its sole discretion and shall inform the Customer. The Company shall ensure that the Customer does not suffer economic loss in the application of the Company warranty under the Act. The Customer may use published material and instructions of care for the Goods provided by the Company but shall not, give or make any undertaking, assertion or representation in relation to the Goods to any other person or company. If the Customer makes any other representations to the purchaser the Customer shall indemnify the Company against any liability or cost incurred by the Company as a result of any breach by the Customer of this provision.
11. Grounds for Termination by the Company
11.1 This Agreement may be terminated by the Company immediately on written notice to the Customer, if an Event of Default of payments due to the Company by the Customer occurs, and the Company may enter the premises of the Customer where the Goods are stored and remove them.
11.2 Default will also mean, if the Customer:
(a) Trades with the Company below two thousand dollars plus GST ($2000 + GST) per annum.
(b) Fails to comply with any quality or standards for the care of the Goods printed on the label or issued by the Company.
(c) Shall commit any act of bankruptcy, or enter into any composition or arrangement with creditors.
(d) Where the Customer is a company do any act which would render it liable to be liquidated or if a resolution is passed or proceedings commenced for the liquidation of the company or if a Receiver is appointed in respect of all or any assets of the company.
No release from obligations. Terminations of this agreement shall not relieve the Customer of its obligations to pay all money owed by it to the Company on any account whatsoever, which money shall be payable immediately notwithstanding that the date for payment of the money may not have arrived. Termination of this agreement shall not relieve the Customer from liability arising from any antecedent breach of the terms of this agreement.
Immediate Steps Upon Termination. Upon the termination of this agreement for any reason, all remaining rights of the Customer granted by this agreement shall terminate.
12. Dispute and Arbitration
In the event of any dispute between the Company and the Customer arising out of this contract, the Customer shall agree to pay the undisputed part of the outstanding monies owed and such dispute shall be referred to a Mediator to be agreed between the parties and the costs shall be equally shared and upon failure to agree to the outcomes of mediation the dispute shall be referred to an Arbitrator and arbitration conducted in accordance with the Arbitration Act 1996 and any amendments thereof.