Terms & ConditionsINTERPRETATION
In this agreement the following expressions shall have the following meanings:
'Dealer' means the Dealer as named above.
'defect' has the meaning set out in clause 15 of these terms and conditions.
'delivery date' means the requested delivery date.
'deposit' means the deposit paid or to be paid prior to goods being uplifted or services rendered.
'due date' means the date when the Purchaser is obligated to pay the balance of purchase moneys to the dealer.
'encumbrance' includes any hire purchase, charge or any amount of whatever nature owing to any person and necessary to be paid in order to vest unencumbered title in the trade-in in the Purchaser.
'goods' means the Dealer's goods.
'Purchaser' means the persons or entity who/which is the applicant in this credit application.
'special conditions' means any special conditions referred to on any sale and purchase agreement or invoice.
'terms and conditions' includes all of the details shown on any sale and purchase agreement or invoice together with clauses 1 to 22 hereof.
'trade-in' means the goods described in any trade-in agreement.
The dealer will do its best to deliver the goods to the Purchaser on the delivery date but if the Dealer is late in delivering the goods to the Purchaser or if the Dealer is unable to deliver the goods to the Purchaser the Dealer shall not be liable for such non-delivery or for delay in delivery however caused not for any direct or consequential loss or damage arising therefrom. The Purchaser will take delivery of the goods forthwith upon the same becoming available.
3. DUE DATE FOR PAYMENT
Unless otherwise stated, all balances outstanding are required to be paid in full by the 20th day of the month following invoice ('Due Date')
4. OWNERSHIP AND TITLE
4.1 Title to and property of the goods shall remain with the Dealer until the whole of the balance outstanding in respect of the goods has been paid in full to the Dealer. This clause shall apply regardless of whether the goods consist of repaired or replacement parts installed in machinery not owned by the Dealer.
4.2 For so long as property in the goods is retained by the Dealer the Purchaser will:
(a) store separately the goods and clearly identify the same as the property of the Dealer; and
(b) hold the good as fiduciary and bailee.
4.3 The Purchaser may not resell the goods unless payment of the balance outstanding is made in full to the Dealer on or before the date of resale.
4.4 When the Purchaser resells the goods before payment to the Dealer:
(a) any sale shall be as agent for and on behalf of the Dealer; and
(b) any book debt created on sale of the goods and the proceeds of such sale of the goods when received by the Purchasers shall be held upon trust by the Purchaser for the Dealer; and
(c) any proceeds of sale received by the Purchaser shall be placed in a separate bank account and shall first be applied towards the satisfaction of the Purchaser's indebtedness to the Dealer and thereafter may be retained by the Purchaser.
4.5 If the Purchaser fails to make payment in full on due date the Dealer shall be entitled (whether or not demand has been made and without the necessity for the Dealer to give further or other notice) to retake possession of all the goods in respect of which payment in full has not been received in accordance with the foregoing provisions. The Purchaser hereby authorises the Dealer and its agents to enter upon the premises of the Purchaser or any other premises where the goods may be located for the foregoing purpose and agrees to indemnify the Dealer for all costs and claims incurred or suffered as a consequence of doing so.
4.6 The Dealer may resell the goods where it has retaken possession pursuant to clause 4.5 and apply the proceeds in or towards payment of the balance owing. All costs and expenses of or incurred by the Dealer as a result of any such action, together with transportation and storage charges, shall be payable by the Purchaser upon demand.
4.7 The Purchaser grants to the Dealer a security interest in the goods and any after-acquired goods (including proceeds thereof) purchased from the Dealer in accordance with these Terms and Conditions until payment has been made in full for the goods. The Purchaser also agrees to provide any further information and to enter into further documentation required to enable the perfection of the Dealer's security interest in the goods pursuant to the Personal Property Securities Act 1999 ('PPSA').
4.8 The parties contract out of Part 9 of the PPSA so that the rights and obligations contained in sections 114,125,129,132,133 and 134 of that Part do not apply between the Company and the Buyer: the Buyer waives its rights under sections 121 and 131 of the PPSA and its right under section 148 of the PPSA to receive any financing statement or financing change statement from the Company.
The acceptance by the Dealer of any negotiable instrument stall not be deemed to be a waiver of any of the terms set out in clause 3 and shall not constitute payment unless and until the same has been honoured.
The goods shall be at risk of the Purchaser in all respects from the time when the Purchaser receives delivery of the same. The Purchaser shall be responsible for arranging insurance cover unless the Dealer has agreed to arrange insurance cover at the Purchaser's expense as set out in the insurance section on the front of this agreement. Any insurance cover arranged is subject to the terms offered by the insurer.
7. SPECIAL CONDITIONS
Unless there are special conditions agreed the Purchaser must complete the purchase of the goods on the basis set out in this credit application. If there are special conditions of sale those conditions must be met before the Dealer is required to complete its obligations and before the Purchaser is required to complete its obligations under this credit application.
If the Purchaser does not complete its obligations under this credit application the Dealer may retain the deposit and the Purchaser will have no right to a refund.
9. DEALER RIGHTS WHEN PURCHASER IN DEFAULT
9.1 The Purchaser will be in default if the Purchaser does not make payment by the due date, is insolvent, cannot pay its debts, compounds with its creditors, is liquidated or bankrupted, or has a receiver appointed.
9.2 If the Purchaser is in default, the Dealer may charge the Purchaser default interest of 2.5% per month on all amounts outstanding.
9.3 If the Purchaser is charged default interest this will not extend the date for payment or prohibit the Dealer from seeking to recover the amount outstanding.
9.4 In the event that the Dealer attempts to recover the amount outstanding, the Purchaser will be liable for and will reimburse the Dealer for all expenses, costs, disbursements and legal costs on a solicitor/client basis which are incurred by the Dealer in connection with the enforcement or attempted enforcement of its rights under this contract.
9.5 The Purchaser agrees that all such expenses, costs, disbursements and legal costs will also accrue interest from the date the Dealer pays them until the date the Purchaser pays the Dealer at 2.5% per month.
10.1 If any Trade-in agreement is made and has been completed the Purchaser acknowledges that the Dealer has agreed to credit the amount shown as 'net allowance' and 'less net trade-in allowance as detailed above' and to accept the trade-in subject to the conditions of this clause 10.
10.2 The Purchaser agrees that the details relating to the trade-in including the details relating to any encumbrance are correctly recorded.
10.3 When no details are completed relating to any encumbrance the Purchaser warrants that no moneys are owing on the trade-in to any person and the Purchaser undertakes to the Dealer that:
a) the Purchaser owns the trade-in and has the right to sell the trade-in to the Dealer without permission of any other person: and
b) no other person holds or is entitled to any encumbrance or security interest (as defined in PPSA) over the trade-in other than that noted in the 'Trade In Agreement' Section on the face hereof:
10.4 The Purchaser undertakes that the trade-in delivered to the Dealer is in the same condition as it was when inspected by the Dealer and has all equipment and accessories in the same condition as at the date of inspection.
10.5 The Purchaser acknowledges that the Dealer has agreed to credit the net allowance towards the price for the goods on the basis that what the Purchaser has told the Dealer about trade-in is correct and that the Purchaser has not withheld information about the trade-in which is material to the Dealer agreeing to accept the trade-in or to the value agreed to by the Dealer.
10.6 The Purchaser agrees that if the Purchaser has not given all material information to the Dealer or has given wrong information about the trade-in which affects the value of the trade-in or the Purchaser's right to sell it, the Dealer may:
a) refuse to accept the trade-in and either cancel the agreement and require the Purchaser to return the goods to the Dealer (if the Purchaser already has possession of the goods); or
b) require the Purchaser to pay the full cash price without a credit for the trade-in; or
c) claim compensation from the Purchaser for the Dealer's losses (including the difference between the Dealer's valuation and its actual market value).
10.7 The Purchaser shall own the trade-in, be responsible for insurance cover for the trade-in and for any loss or damage to it until the Dealer has accepted delivery of the trade-in to the Dealer.
10.8 The Purchaser acknowledges that the trade-in has been made freely and has not been demanded of the purchaser as a condition of the sale of the goods.
THE FOLLOWING CONDITIONS 11,12, 13 AND 14 SHALL APPLY IN RESPECT OF NEW GOODS
11 AVAILABILITY OF STOCKS
11.1 The Dealer shall not be bound to import goods to fulfil any agreement. If at any time before the delivery date the Dealer has no or insufficient stock in New Zealand, the Dealer may cancel the agreement at its option.
11.2 If the Dealer cancels the agreement it will refund the deposit (if any). If the Purchaser has already given a trade-in the Dealer shall have the option either:
a) to give back the trade-in to the Purchaser (if in the Dealer's opinion it is in the same or a better condition than when the Purchaser delivered it to the Dealer): or
b) pay the Purchaser the amount specified as the value of the trade-in as set out in the Trade-in Agreement Section.
12 ALTERATIONS IN PRICES
12.1 The Dealer's price may be altered at any time and all goods, components and parts thereof and other products are sold subject to the prices ruling at the time of actual delivery. In the event of the total price payable on the date of actual delivery being greater than that shown on the face of any agreement shall be construed as if the total price payable at the actual date of delivery was substituted for the total price payable shown.
12.2 In any such event the Purchaser shall have the option within 24 hours of receiving notification of such price increase of cancelling the agreement and having the cash deposit refunded and the trade-in (if any) returned provided that where the trade-in has been sold or otherwise disposed of the Purchaser shall be entitled only to the agreed purchase price for the trade-in.
13 ALTERATIONS IN SPECIFICATION
In the event of any altercation by the manufacturer or assembler in the design or specification of the goods the Purchaser agrees that the Dealer shall be entitled but not bound to deliver goods conforming to the altered design or specification in fulfilment of the Dealer's obligations under any agreement.
The Purchaser is entitled to the manufacturer's written warranty, (if any) given to the Purchaser upon delivery. To the extent permitted by law, it is expressly agreed that no outer representation, condition, warranty or promise expressed or implied and this shall include any statutory warranties or guarantees, shall apply to any agreement.
CONDITIONS RELATING TO SECONDHAND GOODS
THE FOLLOWING CLAUSES 15,16,17,18 AND 19 SHALL APPLY WHERE THE GOODS
'defect' means any structural or mechanical flaw or malfunctioning that having regard to the age of the goods, the total hours operated by it and the price has adversely affected or is likely to adversely affect:
a) the safety of (where applicable) road worthiness of the goods: or
b) the market value of the goods: or
c) the serviceability of the goods.
'defect' does not include any panel repair or any damage caused by corrosion.
16 WHAT THE DEALER MUST DO
Subject to clause 17 and 18 the Dealer must repair or arrange to be repaired any defect that appears in the goods during the warranty period referred to in any agreement whether that defect was in the goods when delivered or not. The defect must be repaired so as to put the goods in a reasonable condition having regard to the age of the goods, the total hours operated by it and the price.
17 WHAT THE PURCHASER MUST DO
The Purchaser must notify the Dealer once a defect appears and make the goods available to the Dealer for repair. If repair by the Dealer is not practicable the Purchaser must keep any workshop records and defective parts available for inspection by the Dealer. The Purchaser should cease to use the goods as soon as possible after defect appears.
Normal maintenance on the goods must be carried out.
18 WARRANTY EXCLUSIONS
18.1 The Dealer shall not be liable for:
a) any defects made known by the Dealer to the Purchaser prior to or at the time of signature of any agreement;
b) any defects arising from or incidental to any accidental damage to the goods that occurred after the completion of the sale;
c) any defects arising from misuse by or negligence on the part of any operator of the goods that occurred after the completion of the sale;
d) any defects occurring in the tyres, battery or any prescribed accessories;
e) any defects arising from failure to carry out normal maintenance after the completion of the sale;
f) any defect the extent of which is aggravated by the failure to have repairs carried out as soon as practicable after the defect becomes apparent;
g) any defects arising out of the use of goods in any manner for which the goods were not normally intended to be used.
18.2 Where the 'warranty' panel in any agreement is completed with the details 'No Warranty' clause 18.3 shall apply.
18.3 Except as provided in the warranty panel in any agreement and to the extent permitted by law, no representation, condition, warranty or promise, expressed or implied whether by statute or otherwise applies to this agreement.
18.4 Where the Purchaser elects a limited warranty such warranty will remain in force for the duration of the term from the date of purchase as recorded on the front page. For all parts, labour, outwork and costs incurred under this limited warranty the Purchaser shall first pay the excess amount recorded on the front page and then all further costs will be split 50% to the Purchaser and 50% to the Dealer at normal retail rates.
Repair of a defect may involve work or replacement of a part that seems necessary and increases the running life of the goods. The Purchaser must be notified before any betterment work is begun and written permission given to go ahead, The Purchaser will be called upon to pay for the betterment work only when the total repair cost is over $200.00 and the amount of the betterment itself exceeds $100.00.
20 WARRANTIES AND EXCLUSION OF LIABILITY
20.1 The Purchaser confirms that the goods are suitable for its needs.
20.2 The Purchaser acknowledges that the Consumer Guarantees Act 1993 shall not apply to any goods and services acquired for business purposes.
20.3 Unless expressly provided in these conditions, all warranties, conditions or other terms implied by law (including under the Sale of Goods Act 1908 and the Consumer Guarantees Act 1993) are excluded to the fullest extent permissible by law.
20.4 The Dealer will not be liable to the Purchaser for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims arising out of or in connection with the goods and services provided, and the Dealer's entire liability to the Purchaser under or in connection with this contract will not exceed (at our option) the price paid, or replacement of the goods and services.
20.5 The Dealer will not be liable to the Purchaser, will be deemed to be in breach of the contract due to any delay in performing, or any failure to perform its obligations in relation to the goods and/or services whether delay or failure is due to any cause beyond the Dealer's reasonable control.
The Dealer may contract third parties to obtain credit references in order to determine the Purchaser's credit worthiness. Information provided by the Purchaser to the Dealer will be used to perform the contract and may be used by the Dealer for its business and marketing purposes. The Purchaser has the right at any time to request an update or correction of any information and to remove the Purchaser's name from the Dealer's mailing list (if any).
22 CREDIT APPLICATION FORM
If the Purchaser has previously signed a credit application form with the dealer or has signed an agreement to purchase goods or services in the event of any conflict between the terms and condition contained herein and the terms and conditions contained within the previous credit application form or agreement to purchase goods or services, the terms and conditions of this credit application form shall prevail.
23 GENERAL TERMS AND CONDITIONS
The Purchaser agrees upon the acceptance by the Dealer to offer the Terms and Conditions of Credit, that The Dealer's General Terms and Conditions shall also apply. For avoidance of doubt by signing the Terms and Conditions of Credit the Purchaser is also bound to the Dealer's General Terms and Conditions. The General Terms and Conditions can be provided upon request. The Dealer reserves the right to update and change the General Terms and Conditions without notice.