We supply all goods ("Goods") subject to the
following terms and conditions ("the Terms").
1. TERMS TAKE PRECEDENCE
1.1 Conflicting Terms: Regardless of any statement to the contrary by you, to the extent that the Terms conflict with any terms purportedly stipulated by you in an order, these Terms shall apply. Fulfilment by JML Sales NZ Limited ("we", "us" or "our") of an order in which you have purported to make other terms applicable shall not preclude us from relying on this clause.
1.2 Conflict between Standard Terms and other Agreements: If there is any conflict between these standard terms and the terms agreed to in a written agreement relating to a particular order then the written agreement will prevail.
2.1 Offer: If you place an order it will constitute an offer to buy from us the Goods referred to in the order at the price advised by us for that order or our standard price and on the Terms. We will not be bound to proceed with the order unless we have accepted it in writing.
2.2 Letter of Credit: An order may be accepted subject to payment being secured by a Letter of Credit for the full amount of the purchase price on terms acceptable to us and any such order will be conditional upon the provision of such Letter of Credit.
3.1 Delivery: If a delivery time for the Goods is specified then we will use our best endeavours to deliver as close to that date as possible however, we shall have no liability to you for any losses arising by reason of delay in delivery, whatever the cause of the delay.
3.2 Discrepancies and Defective Goods: No claim for:
(a) a discrepancy between an order and the Goods delivered; or
(b) faulty or defective Goods; or
(c) a discrepancy between the quantity of goods ordered and delivered except as provided in clauses 3.3 to 3.5;
will be considered by us unless it is made in writing and received by us within 7 days of the Goods being delivered to you.
3.3 Quantity: In view of the difficulty in supplying exact quantities in a mass production process, we shall not be in breach of our obligations if we deliver a quantity of the Goods which is up to 10% more or less than the quantity specified in the order.
3.4 Under delivery by more than 10%: If we under deliver by more than 10% of the quantity of Goods specified in the order, at our option we may either:
(a) deliver an additional quantity of the Goods to you so as to bring the overall delivery within the tolerated 10% of the quantity specified in the order; or
(b) reduce the purchase price of the Goods accordingly; at the our sole discretion.
3.5 Over delivery by more than 10%: If we over deliver by more than 10% of the quantity of goods specified in the order, at our option we may either:
(a) repossess a quantity of the Goods from you so as to bring the quantity delivered within the tolerated 10% of the quantity specified in the order; or
(b) raise an additional invoice in respect of the quantity of Goods in excess of the tolerated 10% of the quantity specified in the order at our sole discretion.
4. PAYMENT TERMS
4.1 Payment: Payment is due upon the later of delivery and any earlier date specified in any specific terms in the order for the Goods.
4.2 Time of the Essence: Time is of the essence in respect of all payments and if you fail to make payment when due, we shall not be obliged to deliver any goods ordered.
4.3 Late Payment: Any payment that is in arrears shall bear interest at a rate of 16% until the date of payment.
4.4 Letter of Credit: We may call upon any Letter of Credit held for payment forthwith following delivery and satisfaction of any conditions applicable to the Letter of Credit.
4.5 Creditworthiness: If we, in our sole discretion, deem your credit to be unsatisfactory, we may do any or all of the following:
(a) require security for payment;
(b) withhold delivery or cease manufacture;
(c) require you to pay for an order, in cash or cash equivalent, on delivery;
(d) cancel any/all unfulfilled orders;
(e) declare all amounts outstanding for orders deliver immediately due and payable in full.
4.5 Application of Payments: We shall have the right to apply all payments received from you towards any indebtedness as we think fit. We shall not be bound by any qualifications or conditions attached to such payments by you.
4.6 Variation of Price: If before delivery of the Goods the cost of production (which includes materials, labour, freight, or any tax, duty, levy or currency fluctuations) increases by an aggregate of 1 per cent of the cost of the Goods or more then we may increase the price by an amount which is reasonably necessary to compensate us for the increased cost.
5. RISK, TITLE AND SECURITY INTEREST
5.1 Risk: All risk in the Goods shall pass when we tender delivery to you. If you fail to take delivery when tendered, the risk in the Goods shall nevertheless pass to you.
5.2 Title: Title in the Goods shall not pass to you until payment for the Goods and all other amounts owing by you has been paid in full.
5.3 Security Interest in the Goods: You grant to us a security interest in the Goods and in all Goods hereafter acquired by you from us, and the proceeds of such Goods, as security for all amounts owing to us in respect of any Goods and from any other cause whatsoever.
5.4 Exclusions of PPSA Rights and Obligations: Nothing in sections 114(1)(a), 117(1)(c), 133 and 134 of the PPSA will apply. The rights set out in sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA shall not apply.
6. WARRANTIES & LIABILITY
6.1 Consumer Guarantees Act: You agree that to the extent that supplies are for business purposes all provisions of the Consumer Guarantees Act 1993 are excluded to the maximum extent allowed under section 43(2) of that Act.
6.2 No warranties: If an order refers to a sample or has been made in reliance on a sample we will use our best endeavours to ensure that the goods supplied conform to that sample. However, the Company gives no warranties as to the quality of the Goods or as to their fitness for any purpose, even if that purpose was made known to the Company, and the conditions implied by sections 15, 16 and 17 of the Sale of Goods Act 1908 or by trade usage are excluded.
6.3 No liability for Consequential Loss: We shall not be liable in contract, tort or otherwise for any consequential, indirect or pure economic loss suffered by the customer as a result of any defect in the Goods or any failure by us to perform our obligations to you in respect of an order, even if such loss was, or should have been, within our contemplation.
6.4 Limitation of liability: Any claim which you may have against us, whether in contract, tort or otherwise as a result of any defect in the Goods shall be limited, at our option, to the repair or replacement of the defective Goods (if applicable) or the refund of a maximum amount equal to amounts actually paid by you to us in respect of the defective Goods.
7. DEFAULT AND TERMINATION
7.1 Failing to Meet Payment Obligations: Where we consider you may be unable to meet your payment obligation to us, we may, without limiting our other rights and remedies, do all or any of the following:
(a) Require you to stop selling or otherwise disposing of the goods;
(b) Demand payment of all or part of any sums due;
(c) Require security for your obligations before we make any further supplies to you;
(d) Without notice, withhold deliveries of goods ordered by you.
7.2 General Default: Where:
(a) You are in breach of any of these Terms (including failure to make payment on the due date); or
(b) You become insolvent or are adjudicated bankrupt or an application is made for your liquidation or a liquidator or a receiver is appointed in respect of your assets; or
(c) You no longer carry on business or threaten to stop carrying on business; or
(d) An arrangement is made or likely to be made with your creditors; or then, without prejudice to our other rights and remedies, we may do all or any of the following:
(i) Where you have failed to make payment on a due date, require you to compensate us by making payment to us on demand of interest (as liquidated damages) on the amount due from the due date until the date of payment at a rate equal to 16 percent per annum (in addition to you remaining liable for the full amount outstanding);
(ii) Cancel this and any other contract of supply with you;
(iii) Recover and/or resell any of the goods and enter any premises where we believe the goods are stored and you grant us an irrevocable right and authority to do so. We may only recover and resell for our own account sufficient goods to satisfy all unpaid liability, the cost of recovery and resale and the costs referred to in clause. If we recover any excess, we will not be liable in damages to you but must account to you for the excess.
7.3 Costs & Expenses: You will pay all costs and expenses (include indemnity costs on a solicitor/client basis and debt collector’s costs) we incur in enforcing or attempting to enforce our rights under this clause. We may deduct any costs and expenses incurred from the proceeds of sale of any goods recovered from you.
7.4 Application of Payments: Your payments will be applied first in reduction of interest, liquidated damages and costs due under this clause, with the balance being applied in reduction of any amounts due under clause.
7.5 No limitation of other rights: Termination under clause 7.1 or 7.2 will not limit or affect any other rights or remedies we may have under these Terms or at law.
8. FORCE MAJEURE
8.1 We shall not be liable for any loss or damages suffered by you due to a failure by us to perform our obligations, where such failure is due to circumstances which are beyond our reasonable control including, without being limited to, industrial action, shortage of materials and delays or failures by suppliers including any form of shipping.
9. ENTIRE AGREEMENT
9.1 The Terms together with any ancillary agreement will constitute the entire agreement concerning the supply of Goods. No representation, warranty, term or condition shall be binding on us unless it is included in the Terms.
10.1 Any failure by us to exercise a right under the Terms shall not constitute waiver of that right.