TERMS OF TRADE
Totally Vets Ltd uses all reasonable skill, care and effort in its provision of Products and Services. The following document details the Terms by which Totally Vets Ltd provides all Products and Services to Buyers unless otherwise agreed in writing. In the event of any conflict between these Terms and any subsequent written agreement, the terms of the subsequent agreement prevail.
Totally Vets Ltd may at any time amend any of the Terms with immediate effect by posting the amended Terms on the Company's website www.totallyvets.co.nz/termsoftrade and advising the Terms have been amended on the Buyer's invoice. By continuing to order Products and Services, the Buyer is deemed to have accepted the amended Terms.
1. Defined Terms
"Goods" means all goods
supplied from time to time by us to you.
"PPSA" means the Personal Property Securities Act 1999 as amended or substituted from time to time.
Unless the context otherwise requires herein all words and phrases shall have the meanings given to them in, or by virtue of, the PPSA.
"CGA" means Consumer Guarantees Act 1993 as amended or substituted.
"us" or "we" means Totally Vets Ltd.
2. Terms of contract
Any goods or services supplied to you shall be subject to these Terms of Trade unless otherwise agreed in writing by us.
3.1 Unless otherwise agreed in writing any quoted price may be altered prior to delivery of the Goods to you, or before completion of repairs or services by us, if our costs fluctuate materially. A cost fluctuation will be a material fluctuation for the purposes of these Terms of Trade, if the fluctuation has the effect of increasing the median gross acquisition cost of the Goods, or of the services obtained by us by a factor of 5% or more. We may withdraw any quotation before it is accepted, and in any event any quotation will lapse 30 days after it is given without notice. GST will be payable by you as an additional amount on all prices and charges.
3.2 The price for Goods and services will be either as quoted to you in writing or, if no written quote is provided, levied pursuant to our standard charges applying at the time, notice of which you are hereby deemed to have received.
4.1 Unless otherwise agreed in writing you must pay for Goods or Services on the 20th day of the month following invoice ("the due date")
4.2 If full
payment for the Goods or services is not made on the due date, then without
prejudice to any other remedies available to us:
(a) We may cancel this contract or withhold supply of any further Goods or services;
(b) Interest on monies overdue shall be charged on a daily basis and be calculated at a rate of 1.5% per month compounding during such default ("penalty interest"). Penalty interest shall continue to accrue both before and after judgment. You shall be responsible for all costs incurred by us in recovering such monies on an indemnity or solicitor/client basis.
4.3 Your obligation under these Terms shall be to pay the full amount owing under these Terms free of all deductions or rights of set off.
4.4 When paying by credit card a fee of 1.3 per cent (of your payment amount) may be applied.
5.1 Ownership in the Goods shall not pass upon delivery, but shall remain with us until full payment of all monies owing by you to us has been made. Until all monies have been paid:
(a) You hold the Goods supplied as fiduciary for us and will deal with them as our agent for and on behalf of us (but will not hold yourself out as our agent to any third parties);
(b) If you resell the Goods supplied the proceeds of any resale will belong to us, and you will pay the same into a separate account for which separate records are kept, and all claims which you hold against third parties will be immediately assigned, and are hereby deemed assigned, to us;
(c) You irrevocably give us and our agents the right to enter your premises, or any place where we may reasonably believe you to have stored the Goods, to remove any of the Goods supplied and to resell them;
(d) If any of the Goods become part of a product or mass such that the identity of those Goods is lost in the product or mass, the security interest created by this clause continues in the product or mass in accordance with the provisions of the PPSA.
(e) If any of the Goods are installed in, or affixed to, and become an accession to, other goods, the security interest continues in the accession in accordance with the provisions of the PPSA.
6.1 We warrant that the Goods are free from defects in workmanship and material. Except to the extent of written warranties given by us to you, all warranties and representations in respect of Goods sold or services supplied are excluded, including (to the extent permitted by law) those expressed or implied by law.
6.2 We shall not be liable:
(a) Where you have altered or modified the Goods, mis-applied the Goods, or have subjected them to any unusual or non-recommended use, servicing or handling;
(b) For loss caused by any factors beyond our control;
(c) For any indirect or consequential loss of any kind;
(d) Where the terms of any written warranty have not been complied with, the operating specifications/directions contained in any manufacturers' handbook provided to you have not been complied with.
6.3 Our total liability under any warranty for defective or damaged Goods supplied by us or in relation to the provision of services is limited at our option to either:
(a) Replacing or repairing the defective or damaged Goods at our cost; or
(b) Refunding the price of the defective or damaged Goods or provision of service.
7. General Terms
If a dispute arises, the parties will try to settle the dispute by mediation by a single mediator, before resorting to litigation or arbitration. Any party may initiate mediation by giving written notice to the other ("mediation notice"). The mediator should be agreed upon by the parties, but if the parties cannot agree on a mediator within fourteen days after service of the mediation notice, then either party may petition the President for the time being of the Manawatu District Lawyers Standards Committee, who shall appoint the mediator.
If you have paid a deposit, and then cancel an order, we may retain any deposit paid. If any quotation is accepted and for any reason you determine subsequent to acceptance of the quotation that the Goods are no longer required then we shall have legal remedies against you including but not limited to damages. We shall have the right to cancel any orders for Goods or services under any contract entered into if, due to circumstances beyond our control, it would be impractical or unreasonable to fulfil the order, if any information supplied is materially incorrect or if, in our opinion, a satisfactory job cannot be achieved.
7.3 Return and Use of Products
Goods may only be returned for credit with the agreement of the Company. No refrigerated Goods supplied by the Company may be returned for credit. Any Goods returned to the Company must be returned freight paid, though you may claim for any reasonable freight charges.
Goods are to be used in accordance with all instructions given by the Company or the manufacturer of such Goods.
7.4 Waiver or variation
Waiver or variation of these Terms of Trade by us will only be effective if given in writing by an authorised person. If we waive any of these Terms of Trade the waiver will not affect our rights under these Terms of Trade at any future time.
7.5 Governing law
These Terms of Trade will be interpreted in accordance with and governed by the laws of New Zealand and the New Zealand courts will have non-exclusive jurisdiction in respect of all matters between us. The parties hereby nominate as the initial forum for the determination of any judicial proceedings be determined in the District/High Court at Palmerston North.
7.6 The Privacy Act
To the maximum extent permitted by law, you and any guarantor (if relevant) authorise us to collect and hold personal information from any source we consider appropriate to be used for the purposes of determining credit worthiness, for communicating promotional activities and product information, for debt collection purposes, or for any other related purpose. You further authorise us to disclose such information for the purposes set out above to any other parties. You are advised that you have a right of access to any personal information about you held by us, and may request correction of personal information held by us about us.
7.7 Consumer Guarantees Act
To the maximum extent permissible at law the provisions of the CGA are excluded. In no circumstances shall the provisions of the CGA apply to any Goods acquired for business purposes.
7.8 Use of the Company's Name
Prior written consent is required by us before any public reference to the Company or the Company's provision of Goods and services is made by you. This includes use of the Company's name in any advertising and promotional material.
You acknowledge and agree that:
(a) by assenting to these Terms, you grant a security interest (by virtue of the retention of title clause in clause 5 of these Terms) to us in all Goods previously supplied by us to you (if any) and all after acquired Goods supplied by us to you (or for your account); and
(b) these Terms shall apply notwithstanding anything, express or implied, to the contrary contained in your purchase order.
8.2 Financing Statement:
You undertake to:
(a) sign any further documents and/or provide any further information (which information you warrant to be complete, accurate and up-to-date in all respects) which we may reasonably require to enable registration of a financing statement or financing change statement on the Personal Property Securities Register;
(b) not register a financing change statement or a change in demand in respect of the goods (as those Terms are defined in the PPSA) without our prior written consent; and
(c) give us not less than 14 days prior written notice of any proposed change in your name and/or any other changes in your details (including but not limited to, changes in your address, facsimile number, trading name or business practice).
8.3 Waiver and contracting out
(a) To the maximum extent permitted by law under section 148 of the PPSA, you waive the right to receive a verification statement in respect of any financing statement or financing change statement relating to the security interest.
(b) To the maximum extent permitted by law, you waive your rights and, without agreement, contract out your rights under the sections referred to in sections 107(2)(c) to (e) and (g) to (i) of the PPSA.
(c) You agree that nothing in sections 114(a), 133 and 134 of the PPSA shall apply to these Terms of Trade and, with our agreement, contract out of such sections.
(d) You and we agree that section 109(1) of the PPSA is contracted out of in respect of particular Goods if and only for as long as we are not the secured party over all other secured parties in respect of those Goods.
8.4 You acknowledge and agree that we may do all acts and sign all documents, including the execution of any and all documents as your duly authorised attorney (which appointment is hereby deemed), including the registration of any documents we consider necessary or desirable for the perfection, or enforcement of any security interest we have in any Goods or services.
9.1 All quotations will remain open for acceptance at any time within a period of 30 days from the date the quotation is submitted to you.
9.2 A quote acceptance form shall be required prior to work commencing on site.
9.3 If we are contracting with a private company we retain the right to require a personal guarantee as provided within these Terms of Trade from the directors of that company prior to us commencing works.
9.4 Unless otherwise recorded in writing time shall not be of the essence within any contract and we shall not be liable for any delay in completion or non-completion of the contract due to the unavailability of stock or other factors arising directly or indirectly out of any circumstances beyond our control.
9.5 In the event there is any inconsistency between the Terms of Trade and any quote then the quote shall take precedence.