Terms and Conditions

 

  1. PRICE

  1. The Price shall be increased by the amount of any goods and services tax or any other taxes and duties which may be applicable, except to the extent that such taxes are expressly excluded in any quotation given by the Seller.

  2. The Seller is entitled to charge the Buyer an extra charge and/or recover from the Buyer any costs and/or expenses incurred where additional work is carried out in respect of the Goods by the Seller and such additional work results from any lack of precision in the Buyer’s specification of the Goods or the Buyer alters the specification of the Goods after the date of ordering.

  3. The Buyer is bound to pay the Price from the time that an Order is placed with the Seller by the Buyer and accepted by the Seller. There shall be no obligation on the Seller to inquire as to the authority of any person placing an Order for the Buyer. No Order may be cancelled without the Seller’s prior written approval, and then only upon such terms as the Seller may specify.

  1. PAYMENT

    1. Standard Payment terms are cash upfront. Payment will not be accepted by any means other than by international telegraphic transfer.

    2. Payment will be made in the currency stipulated on the invoice.

    3. The Seller may offer credit terms on certain Orders. The Supplier will define credit terms as “Net X” payment terms. For Net X payment terms, payment is due X days after the delivery of the Goods to the delivery address.

    4. Interest may be charged on overdue accounts at a rate of 3.5% per month calculated on a daily basis on the unpaid amount from due date until payment in full, plus any taxes.

    5. Any expenses, costs or disbursements incurred by Protempo in recovering any outstanding monies including debt collection agency fees or solicitors costs shall be paid by the Customer

    6. The Customer must pay Protempo any fees or costs imposed on Protempo if any payment made by the Customer is dishonoured or reversed.

    7. The Buyer may not withhold any payment or make any deductions from any Amount Owing without the Seller’s prior written consent.

  1. FREIGHT AND CUSTOMS

    1. The Buyer is responsible for all Customs and Importation risk, clearance and costs.

    2. The Buyer warrants that the Buyer has authority and permit to import into and sell the Goods in the destination country .

    3. The provisions of the Incoterms 2010 are deemed to be included in and form part of this agreement except to the extent that any such provisions are inconsistent with the terms of the contract.

    4. Freight and delivery of Goods are covered by Incoterms rules or International Commercial Terms and will clearly be stipulated on each order for Goods received from the Buyer.

    5. Acceptance of freight terms shall be confirmed in writing by the Seller upon receipt of an order as noted in clause 4.1.

      1. Where the terms of an Order are CIP, the Buyer agrees that the Seller has fully performed their obligations under this agreement when the Goods are delivered to a port in the agreed destination country, and the Buyer is responsible for all Customs and Importation risk, clearance and costs in the destination country.

  1. ORDER AND DELIVERY

    1. The Seller is not obliged to accept any order for Goods placed by the Buyer. Acceptance shall be confirmed in writing by the Seller upon receipt of an order for Goods by issuance of a Pro-forma Invoice.

    2. Where delivery is to be made at the place specified in this contract, the Seller shall deliver, or arrange delivery of, the Goods to that place. The Seller will provide this service as the Buyer’s agent and the Buyer shall indemnify the Seller for any liability incurred by the Seller in providing this service, and pay any transport cost incurred as a result (except where the contract specifies that the Seller is responsible for such transport costs).

    3. The Seller may deliver the Goods by instalments and each instalment shall be treated as a separate contract under these Terms.

    4. If the Seller fails to deliver or makes defective delivery of any part of the Goods, the Buyer is not entitled to cancel the contract.

    5. Any time stated for delivery of the Goods is an estimate only. The Seller is not liable to the Buyer or any other person for any delay in delivery.

    6. If the Buyer refuses to accept, or indicates to the Seller that the Buyer will refuse to accept, delivery of any of the Goods, the Goods will be deemed to have been delivered when the Seller is willing to deliver the Goods and/or the Seller may charge the Buyer for any additional costs and/or expenses incurred as a result of such refusal, including storage and transportation costs.

    7. The Seller is not liable for any failure to deliver the Goods or delay in delivery of the Goods.

    8. The Buyer agrees that the Seller shall not be liable for any Claim by the Buyer due to the failure to deliver the Goods or due to any delay in delivery of the Goods.

  1. RISK AND OWNERSHIP

    1. Risk of any loss, damage or deterioration of or to the Goods passes to the Buyer from the date of delivery (or deemed delivery) of the Goods.

    2. Ownership of the Goods remains with the Seller and does not pass to the Buyer until the Buyer pays in full the Amount Owing in respect of the Goods. While ownership of the Goods remains with the Seller, the Seller authorises the Buyer in the ordinary course of its business to use the Goods and to sell the Goods for full consideration.

    3. The following Personal Property Securities Act 1999 (“PPSA”) provisions shall apply:

      1. The Buyer grants to the Seller a security interest in the Goods and any debt owing to the Buyer arising from the subsequent sale of those Goods and or any monies received from such sale as security for payment of the Amount Owing and for the performance by the Buyer of all the Buyer’s other obligations from time to time to the Seller.

      2. The Buyer agrees to do anything that the Seller requires to ensure that, from the time that the Goods are delivered, the Seller has a perfected security interest in the Goods.

      3. The Buyer shall reimburse the Seller for all costs and/or expenses incurred or payable by the Seller in relation to registering any financing statement or any other document in respect of the Goods.

      4. The Seller may allocate all amounts received by the Buyer in any manner it determines including any manner required to preserve any purchase money security interest in the Goods.

      5. While the Goods continue to secure the Buyer’s indebtedness, the Buyer must store the Goods separately and clearly identify the Goods as being subject to the Seller’s security interest.

      6. The Buyer agrees that nothing in sections 114(1) (a), 133 and 134 of the PPSA shall apply to this contract, or the security under this contract, and waives the Buyer’s rights under sections 121, 125, 129, 131 and 132 of the PPSA.

      7. The Buyer waives the right to receive a copy of the verification statement confirming registration of a financing g statement or financing change statement relating to the security interest under this contract.

      8. The Buyer must advise the Seller immediately of any Event of Default or any action by third parties (including any of its creditors) affecting the Seller’s security interest in the Goods.

    4. The Seller may bring an action for the price of the Goods sold even where ownership of the Goods may not have passed to the Buyer.

    5. If the Buyer defaults in the performance of any of its obligations under the contract:

      1. The Buyer authorises the Seller to use reasonable force to enter the premises where the Goods are stored and remove them;

      2. The Seller shall exercise reasonable care in entering such premises and removing such Goods, but shall not be liable for trespass or any damage caused by the use of reasonable force;

      3. The Buyer is released from the obligation to pay the Price for all the Goods repossessed by the Seller but only to the extent any proceeds obtained by the Seller reselling the Goods (less all costs incurred) exceeds the Price owing by the Buyer to the Seller for those same Goods;

      4. The Seller may resell any repossessed Goods and apply the proceeds of sale in reduction of the Amount Owing as the Seller thinks fit; and

      5. The Buyer is liable for all costs associated with the exercise by the Seller of its rights under this clause and costs are payable on demand.

    6. The Buyer’s right to retain and deal with the Goods is immediately revoked upon an Event of Default occurring.

    7. The security interest created by these Terms is not discharged nor the Buyer’s obligations affected by the appointment of an administrator(s) to the Buyer.

  1. PRODUCT WARRANTY AND RETURNS

    1. Other than in this clause 6, Protempo expressly disclaims making any warranty of any kind implied or express, including warranties or merchantability or fitness for a particular purpose and all such Goods are sold ‘as is’.

    2. The Seller’s standard warranty is the provision of a 30 Day DOA Warranty.

    3. 30 Day DOA Warranty means that the Seller will refund or replace, at the Seller’s option, any faulty Goods which are notified as faulty by the Buyer to the Seller within 30 days of the date of delivery AND returned by the Buyer to the Seller within 60 days of the date of delivery. The Buyer shall pay for the return of any such stock. Any refund or replacement shall only be issued after Goods are returned to the Seller at their head office:

Protempo Limited

21E Taylors Road

Morningside

Auckland 1025

New Zealand

    1. The Seller may provide specific warranty terms for specific Goods. These specific terms will be recorded on confirmation of acceptance of purchase order from the Buye r on the pro-forma invoice for Goods which the Seller supplies to the Buyer . No agreement for additional warranty terms made verbally, via email, via skype or by any other method shall be enforceable unless it is clearly stated on the [Sales Order][pro-forma invoice] for Goods which the Seller supplies to the Buyer.

    2. The Buyer shall be liable for all delivery and insurance costs incurred in respect of any Goods returned to the Seller for Warranty.

    3. The Buyer’s rights in respect of defective or non-conforming Goods, the Buyer may return Goods where all of the following circumstances apply:

      1. the Seller has agreed in writing in advance, such agreement to be entirely at the discretion of the Seller;

      2. the Goods are, in the opinion of the Seller, in good saleable condition;

      3. the Goods remain in the Seller’s original undamaged packaging;

      4. the Goods are a standard product of the Seller, and not custom made in accordance with the Buyer’s particular requirements or imported from overseas at the request of the Buyer; and

      5. the Goods are returned within 5 days following delivery.

  1. DEFAULT

    1. If an Event of Default occurs, the Seller may suspend or terminate this Contract.

    2. If the Buyer does not pay any Amount Owing by due date, the Seller may charge the Buyer default interest at a rate of 3.5% per month, calculated on a daily basis, on the unpaid amount from due date until payment in full, plus any taxes.

    3. If an Event of Default occurs, any Amount Owing shall immediately become due and payable notwithstanding that the due date has not arisen.

    4. The Seller reserves the right to charge the Buyer all fees, charges, interest, commission, solicitor-client costs (both prior to and following judgement) and any other costs involved in the settlement and/or recovery of any Amount Owing.

  1. USE OF INFORMATION

    1. The Buyer agrees that the Seller may obtain information about the Buyer from the Buyer or any other person in the course of the Seller’s business, including credit assessment and debt collecting activities, and the Buyer consents to any person providing the Seller with such information.

    2. The Buyer agrees that the Seller may use any information it has about the Buyer relating to the Buyer’s creditworthiness and give that information to any other person, including any credit or debt collection agency, for credit assessment and debt collection purposes. The Buyer agrees that any other information collected by the Seller about the Buyer may be accessed or collected for use of the Seller.

    3. The Buyer must notify the Seller of any change in circumstances that may affect the accuracy of the information provided by the Buyer to the Seller.

    4. If the Buyer is an individual, i.e. a natural person, the Buyer has rights under the Privacy Act 1993 to access and request the correction of any personal information which the Seller holds about the Buyer.

  1. ENTIRE AGREEMENT

    1. This agreement together with credit application and related documents executed contemporaneously herewith constitutes the entire agreement between the parties and supersedes any other agreement whether written or oral, that may have been entered into by the parties and shall prevail over contradictory terms and conditions in any purchase order, acceptance, acknowledgement, or other standard forms used by the parties in performing this agreement.

  1. WAIVER

    1. If the Seller exercises or fails to exercise any right or remedy available to it, this shall not prejudice the Seller’s rights in subsequently exercising that or any other right or remedy.

    2. A waiver of any term of this contract must be specified in writing and signed by an authorised officer of the Seller.

  1. NO ASSIGNMENT

    1. The Buyer must not transfer or assign its rights or obligations under this contract to anyone else without the Seller’s prior consent in writing.

  1. CLAIMS AGAINST THIRD PARTIES

    1. Where the basis of the sale is CIF or “Delivered Duty Paid-Buyer’s Premises”, the Buyer will take all responsible steps to minimise the costs of or damage to the Goods and to ensure that all rights of recovery against a carrier or other third party are not prejudiced by any act or omission of the Buyer. In particular, the Buyer will:

      1. Claim immediately for any missing packages.

      2. Examine the outer packaging of all Goods carefully prior to acceptance. In the case of Goods transported by container, it is sufficient for the purposes of this sub-clause for the Buyer to examine carefully the container and its seals.

      3. If there is any sign of damage to either the packaging or the container obtain an “Exception without Prejudice Note” or a “Qualified Receipt”. In no circumstances, except under written protest, will the Buyer give a “Clean Receipt” where the packaging or the container in which the Goods were transported is in doubtful condition.

      4. Give notice in writing to the carrier and the Seller within three days of actual delivery of the Goods if the loss or damage was not apparent at the time of delivery.

  1. GOVERNING LAW

    1. These terms and conditions, and any act or contract to which they apply, shall be governed by and interpreted in accordance with New Zealand law.

  1. WORDS USED IN THIS CONTRACT

“Amount Owing” means the Price charged by the Seller to the Buyer for the Goods, and any other sums which the Seller is entitled to charge under the Contract and/or any other contract between the parties covered by these Terms.

“Buyer” means the person purchasing the Goods from the Seller pursuant to a contract, including that person’s successors and permitted assigns.

“Claim” includes without limitation any claim:

  • for direct loss or damage;

  • for loss of profits; or

  • for any consequential, indirect or special loss, damage or injury of any kind suffered by any person arising directly or indirectly from:

  • any breach of the Seller’s obligations under this contract; or

  • any cancellation of this contract; or

  • any negligence, misrepresentation or other act or omission by the Seller or its employees, agents or contractors; or

  • for compensation, demand, remedy, liability or action.

“Contract” means the contract created by the Buyer accepting the Application for Credit form incorporating these Terms with the Seller and includes each individual order of Goods by the Buyer and accepted by the Seller under these Terms.

an “Event of Default” means an event where:

  • the Buyer fails to comply with the terms of this contract or any other contract with the Seller; or

  • the Buyer commits an act of bankruptcy; or

  • the Buyer enters into any composition or arrangement with its creditors; or

  • if the Buyer is a company: the Buyer does anything which would make it liable to be put into liquidation or

  • a resolution is passed or an application is made for the liquidation of the Buyer; or

  • a receiver or statutory or official manager is appointed over all or any of the Buyer’s assets; or

  • an administrator is appointed to the Buyer; or

  • the Seller has reason to believe the Buyer may be unable to pay any Amount Owing by the due date for payment.

“Goods” means goods ordered by the Buyer and supplied by the Seller from time to time under these Terms including, but not limited to electronic goods, refurbished goods, clothing, shoes.

“Order” means an order placed by the Buyer with the Seller for the purchase of Goods;

“Ownership” means the property in and legal and beneficial ownership.

“Person” includes a corporation, association, firm, company, partnership or individual.

“Price” means the purchase price of the Goods and any taxes or duties payable under clause 1.1 and any costs payable by the Buyer under this contract relating to transportation, storage and insurance.

“Seller” means Protempo Limited, its successors and assigns.

Privacy Act 1993 include such legislation from time to time amended, re-enacted or substituted and any statutory instruments, regulations and orders issued under such legislation.

“Terms” means these terms of sale and, as the context requires, each contract entered into between the Buyer and the Seller for the supply of Goods and each invoice issued by the Seller to the Buyer for Goods into which these terms of sale are incorporated.

“Incoterms” means International Commercial Terms published by International Chamber of Commerce and cover EXW (Ex-Works), FOB (Free on Board), FCA (Free Carrier), FAS (Free Alongside Ship), CFR (Cost and Freight), CIF (Cost, Insurance and Freight), CPT (Carriage Paid To), CIP (Carriage and Insurance Paid To), DAP (Delivered At Place), DAT (Delivered at Terminal) and DDP (Delivered Duty Paid).