The terms of trade set out below govern all of the supplies of Products and Services from Acme Supplies Limited (“Acme”, “we”, “us”) to the dealer (“you”). They are effective from 1st April 2010 and will replace all earlier Acme terms of trade and any conditions contained in any document used by you and purporting to have contractual effect. Your acceptance of any Products from Acme indicates your continuing acceptance of these terms of trade. You warrant that you are a bona fide reseller of the Products that you acquire from Acme.
1.1 In these conditions, “Supplier” means Acme’s suppliers; “Products” means other goods or services of any kind which are supplied by Acme to you primarily for resupply by you; “Website” means any internet website owned and operated by Acme.
2. Price and Orders
2.1.Prices may be altered without notice.
2.2. Wholesale prices quoted in the Wholesale Price Book are GST exclusive. Recommended retail prices are GST inclusive.
2.3. Acme reserves the right to refuse to accept any order or any part of an order, and to deliver goods by installments, in which case each installment will comprise a separate contract and shall be paid for as if it were a separate order.
2.4. You may not cancel orders for goods which are not stock items. You may not cancel other orders except with our written consent. Where we consent we reserve the right to recover costs incurred in servicing your order.
3. Risk and delivery
3.1. You are responsible for insurance and risk in the Products from the earlier of the time they are received by a carrier for delivery to you or the time they are collected by you or your agent.
3.2. Freight will be charged as follows: Freight will be charged on all orders under $100 excluding GST. Freight will be charged on all orders for spare parts. All repairs are freight free.
3.3. Where goods appear to be damaged or short‐delivered you must contact the carrier and Acme immediately and supply to the carrier and to Acme a copy of the proof of delivery with the loss or damage described on it. All claims for shortage or damage during delivery must be confirmed in writing to Acme within 5 days of the date of delivery. Damaged goods must be made available for inspection by the carrier. Invoice numbers must be quoted with such notification. Shortages advised when payment is made are not acceptable.
3.4. We will make every effort to ensure delivery of Products, or performance of services, is on time, but will not be liable to you for any loss or damage arising in any way from any delay in delivery or performance. Delay in delivery or performance does not entitle you to cancel any order.
3.5. Unless otherwise stated in writing, all Products will be box shipped and it is your responsibility to assemble, configure and install them.
3.6. Where you ask us to deliver goods directly to another person, that person takes possession of the goods for you as your agent, and you are still directly responsible to us under these terms of trade.
4.1 Unless we have agreed in writing to extend credit to you, you must pay by cheque or direct credit into a bank account nominated by us.
4.2. Where we have agreed in writing to extend credit to you, you must pay in full by the 20th of the month following invoice date, unless we have agreed in writing to different payment terms. Your payment is made only when funds have fully cleared through the banking system into our bank account. Payments which you make to us will be considered to be applied first to any goods which have been purchased as inventory and which have been sold by you, then to payment for goods supplied by us which have not been sold by you. We may allocate your payments in this manner at any time after receipt even if we have sent you a statement which indicates payments are allocated in a different manner.
4.3. We may debit your account with reasonable costs incurred as a result of your choice of payment method.
4.4. We have sole discretion to determine the amount of credit we will extend to you at any time.
4.5. You agree to pay for the Products in full without deduction or setoff and to pay goods and services tax and any other government duties, levies or taxes in respect of the Products, whether these are incurred in New Zealand or elsewhere.
4.6. If payment is not made in full by the due date, we are entitled to charge you interest on the unpaid overdue balance at the rate of 5% per annum above the current overdraft rate charged by our bankers, compounding monthly on the unpaid balance owing on the first day of each month until payment in full is received by us, and we may charge you costs (including collection costs and legal costs on a solicitor/client basis) and suspend delivery of further Products or performance of further services until the account is paid.
4.7. Notwithstanding clauses 4.2 and 4.3 above, all payments shall immediately become due to us if you refuse to accept delivery of any Products without reasonable cause, if we reasonably believe that the information which you have given us in your application for credit is incorrect or no longer correct and you have failed to give us correct information satisfactory to us within 5 days of our request, if you sell or otherwise dispose of any goods which have not been paid for without our consent, if you become insolvent, commit any act of bankruptcy, if a receiver, liquidator or statutory manager is appointed over any of your assets or undertaking, if you make or attempt to make an arrangement or composition with creditors, or if you fail to comply with any of the provisions of clause 6.
5.1. Property and ownership in Products will not pass to you but will remain with us until we receive payment in full of the purchase price of the Products and all other amounts that you owe to us for any reason.
5.2. Until property passes to you, you shall hold any Products in trust as fiduciary bailee for us and store them in a manner to enable them to be identified and cross referenced to particular invoices.
5.3. Unless otherwise notified in writing, where goods are supplied to you as inventory or otherwise for resupply (including by way of attachment to or incorporation into manufactured or assembled goods) you are authorised to sell the Products in the ordinary course of your business, but you must hold any accounts receivable or other proceeds for our benefit. If you use any money proceeds to purchase replacement inventory, whether from Acme or a third party, you hold that replacement inventory and its proceeds as collateral for our benefit until all sums owing to us are paid.
6. Security interests
6.1. If we already have a perfected security interest in the products we supply to you together with their proceeds, that security interest is continued under these terms of trade. Otherwise, you grant us a security interest in the Products that we supply to you. Our security interest covers the Products together with all proceeds, whether or not those Products have become accessions to other goods or processed or commingled into or mixed with other goods. The goods and services subject to the security interest will be described on our invoices. Where Products that we supply to you have become mixed with other similar goods supplied by other persons, you grant us a security interest in the mixed goods to the value of the Products in the mixture that we have supplied to you but which have not yet been paid for.
6.2. You agree that you will do all acts necessary and provide to us on request all information we require to register a financing statement over the Products and their proceeds of all kinds, and that you will advise us immediately in writing of any changes to that information. You waive all rights to receive a copy of any verification statement of a financing statement.
6.3. You agree that you will supply us, within 2 business days of our written request, with copies of all security interests registered over your personal property, and you authorise us as your agent to request information from any secured party relating to any security interest which is held in any personal property which is or has been in your possession or control.
6.4. You agree that we may require you to pay all reasonable costs, including legal costs on a solicitor/client basis, associated with the discharge or amendment of any financing statement registered by us, whether or not the change was initiated by you.
6.5. If we repossess goods under this agreement, we may retain those goods or dispose of them without notice to you or any other person, and, after deducting reasonable costs of sale, we will credit any surplus by way of setoff against any sums owing to us. We shall not be obliged to furnish you with the statement of account or to pay to any person other than you or your receiver or liquidator any sum in excess of the total amount you owe us at the time we credit your account. We will not be obliged to reinstate this agreement or resupply any repossessed inventory or equipment to you.
6.6. You authorise us to search the Personal Property Securities Register at any time for any information about you or (if you are a company) your parent or associated companies.
7.1. You acknowledge and agree that returns shall be accepted by us only in accordance with our returns policy as notified to you from time to time, and that you may receive a full or partial credit for goods that have been returned to us only if, and to the extent that, we have consented in writing to their return. Documentation must be included with the goods returned explaining the reason for their return and quoting the invoice number(s) the goods were supplied on.
7.2. Where we agree to the return of goods you must return them in new condition in original undamaged packaging. A handling charge of 15% of the value of the goods returned, or such a sum as may be necessary to indemnify the company against further costs and/or losses, will be made on all returns.
8.1. Goods are subject to the manufacturers’ warranties only (if any). We will pass on the benefit of those warranties to you, without being directly liable to you under any warranty.
8.2. Where goods are subject to a return to base warranty, you are responsible for returning them to us and you may be responsible for additional costs including (but not limited to) freight.
8.3. Any warranty may be voided by unreasonable use, damage or misuse (including problems caused by misuse or damage after the goods have left Acme’s care), negligent installation or operation, inadequate packaging, cleaning or maintenance, unauthorised repairs, modifications or consumables not supplied by Acme. You will not be entitled to the benefit of any warranty if any sum that you owe Acme for any reason is overdue.
8.4. Generally, a defect in materials or workmanship that leads to a genuine warranty claim will be discovered within the first 90 days of use. Please do not offer to replace the faulty product for the enduser under the guarantee until Acme has examined the product and accepted the guarantee claim.
8.5. Acme does not supply quotes on repairs, as they are generally difficult to estimate accurately. Please send in the item and we will notify you if the cost prohibits carrying out the repair. (NB: Products that retail for under are uneconomical to repair due to handling costs). Please send repairs direct to ACME, Cooper Street, Havelock North, as all workshop repairs are processed in Hastings.
9. Obligations to suppliers
9.1. We may impose certain conditions on you from time to time where our suppliers require us to do so.
10. Limitation of liability
10.1. The provisions of the Consumer Guarantees Act 1993 (“CGA”) shall not apply to any supply of Products to you, and the conditions, warranties and guarantees set out in the Sale of Goods Act 1908 or otherwise implied by statute or common law will not apply and are excluded from these terms of trade.
10.2. Acme’s maximum liability to you (if any) shall be limited to the value of any faulty Products or services supplied, and Acme and its employees, contractors and agents, any manufacturers of the Products or any of their materials or components or suppliers of services, will not be liable to you for loss or damage of any kind however that loss or damage is caused or arises. This exclusion of liability includes, but is not limited to, costs (including costs of returning Products to Acme or to any manufacturer), consequential loss, loss of profits, damage caused by or arising from delays In manufacturing or delivery, faulty or delayed installation, unreasonable use, negligence (including a failure to do something which should have been done or to prevent something from happening), faulty design specifications or choice by you, and faulty materials, components, manufacture, compilation, or assembly of the Products.
10.3. We will not be liable to you for any losses caused by events beyond our reasonable control. We will not be required to settle a strike or lockout or other industrial disturbance against our wishes in order to benefit from this clause.
11. Your further obligations
11.1. Where you purchase any Products from us for resupply as, or incorporation into, goods or services ordinarily acquired for personal household or domestic use or consumption (“Consumer Products”) you warrant that: if you supply the Consumer Products directly to an end user/consumer you will do so using terms and conditions of supply which exclude liability for any claims under the CGA; and if your customer acquires any Products for resupply, you will ensure that your customer and each person in the distribution chain will exclude liability in its contract for supply for any claims under the CGA, but in each case only where the end user/consumer acquires Consumer Products for business purposes. You indemnify us and our Suppliers against any failure by you, your customers or any person in the distribution chain to properly contract out of liability to business end users/consumers under the CGA.
11.2. You indemnify us against all costs (including legal costs on a solicitor and own client basis) expenses, losses, damages or claims arising in any way as a result of your failure to comply with any part of these terms of trade.
12. Intellectual property and confidentiality
12.1 All intellectual property shall remain the property of Acme or any Supplier entitled to it, and neither Acme nor its Suppliers transfer any right, title or interest in the intellectual property to you.
12.2. You must not use any trade marks which are the property of Acme or its Suppliers, or any similar words or marks, or any combination of words which includes any of those trade marks or any similar words or marks, except to the extent authorised by Acme in writing.
12.3. You agree to dispatch the Products only under the trade marks under which they are supplied by Acme, and under no circumstances shall you apply any of the trade marks to any product which is not a genuine branded product supplied to you by Acme.
12.4. You must not cause or permit anything which may interfere with, damage or endanger the trade marks or other intellectual property rights of Acme or its Suppliers, or assist or allow others to do so.
12.5. You must advise Acme immediately when you become aware of any unauthorised use or attempted use by any person of the trade marks or other intellectual property rights of Acme or its Suppliers.
12.6. You may not register a trademark or use any business name incorporating the word “Acme”.
12.7. If your account with Acme is terminated, you must immediately discontinue use of any of the trade marks which are the property of Acme in any sign, or advertising and thereafter you shall not use those trade marks directly or indirectly in connection with your business.
12.8. You agree to ensure that all Confidential Information given by Acme to you is made available to your employees only on the basis that those employees at all times maintain strict confidentiality.
12.9. This clause 12 shall survive the termination of the Agreement.
13.1. Acme reserves the right to change these terms of trade from time to time.
13.2. If Acme fails to enforce any terms or to exercise its rights under these terms of trade at any time, Acme has not waived those rights.
13.3. If any provision of these terms of trade is held to be invalid or unenforceable for any reason, the remaining provisions shall remain in full force and effect and the parties shall adjust their respective rights and obligations in accordance with the spirit and intent of the parties as shown by these terms of trade. 13.4. This agreement is governed by the laws of New Zealand and any dispute under it shall be subject to the exclusive jurisdiction of the Courts of New Zealand.