These
terms and conditions of trade apply to all our Sale of Goods Contracts.
Any order placed with Sahib Limited constitutes your agreement to be
bound by these terms. Any additional or different terms you stipulate
or state in any communication with Sahib Limited (including an order)
are hereby objected to and will not bind Sahib Limited unless Sahib
Limited agree in writing. No sales person, representative or agent is
authorised by Sahib Limited to give any guarantee, warranty or
representation in addition to, or contrary to these terms. In any
event, receipt of goods by you (or another as you direct) upon delivery
constitutes your agreement to be bound by these terms.
1 PRICE AND PRICE VARIATION
1.1
Prices quoted are excluding GST unless otherwise stated. Unless
otherwise agreed in writing, the price of the goods will be the current
price on the day of delivery of the goods. Prices do not include any
delivery surcharges.
1.2 Sahib Limited shall be entitled to adjust
any price quoted from time to time and the Customer agrees to pay any
such adjusted price to take account of variations in the cost to Sahib
Limited of carrying out the whole or any part of the contract arising
from any of the following:
(a) Delays in delivery or installation of
the goods or any of them as a result of instructions or lack of
instructions from the Customer, the Customer's failure or inability to
fulfil the obligations under the contract or any action or inaction by
the Customer or other circumstances beyond Sahib Limited's control;
(b)
Variation in the cost of Sahib Limited acquiring the goods directly or
indirectly, on account of changes in rates of freight and transport
costs, insurance, customs duties, taxes, existing tariff
classifications or any variation in currency exchange rates;
(c)
Variations in the cost of rates of all statutory, government or local
government or governmental authority charges and obligations; or
(d) Any correction of errors or omissions on the part of Sahib Limited or any of its representatives.
2 GST
2.1 All goods and services sold are subject to Goods and Services Tax.
3 PAYMENT
3.1
Unless otherwise agreed, the purchase price shall be paid to Sahib
Limited at its address before delivery the goods to you. Payment will
not be accepted by any means other than cash, cheque, direct credit or
direct debit.
3.2 Sahib Limited reserves the right to suspend
delivery of further goods if the terms of payment are not strictly
adhered to by the Customer.
3.3 Interest may be charged on overdue accounts at such rate as may be charged by Sahib Limited from time to time.
3.4
Any expenses, costs or disbursements incurred by Sahib Limited in
recovering any outstanding monies including debt collection agency fees
or solicitor's costs shall be paid by the Customer.
4 NEW ACCOUNT
4.1 Use of this account shall constitute acceptance of these terms and conditions.
4.2
The Customer shall not be liable for any indebtedness arising from the
fraudulent use of the account provided that the Customer must on
discovering the fraudulent use of the account immediately notify Sahib
Limited of such fraudulent use. The burden of proving such use was
fraudulent shall lie with the Customer.
4.3 The Customer shall endeavour to return all goods acquired by fraudulent use.
5 DELIVERY
5.1 Sahib Limited shall deliver the goods to the address stated on the order or as agreed by Sahib Limited in writing.
5.2 Sahib Limited shall deliver the goods by such carrier and such form of transport Sahib Limited consider to be appropriate.
5.3
Where you specify the carrier and the means of carriage, Sahib Limited
shall deliver the goods in the way specified, the cost of such carriage
being an additional charge to the invoiced price of the goods.
5.4
Sahib Limited will not be responsible for any part delivery or delay in
delivery of the goods as a result of events occurring beyond Sahib
Limited's control. Sahib Limited shall not be in any way responsible
for any consequences (direct or indirect) arising from such delay or
non-delivery.
5.5 The Customer agrees to inform Sahib Limited within
30 days of the date of invoice if proof of delivery is required. After
this period, no liability will lie with Sahib Limited for proof of
delivery.
6 PRIVACY ACT 1993
6.1 The Customer authorises
Sahib Limited to collect, retain, and use personal information about
the Customer (including the information collected in this document) for
the following purposes only:
(a) assessing the Customer's creditworthiness.
(b)
disclosing to a third party details of this application and any
subsequent dealings it may have with Sahib Limited for the purpose of
recovering amounts payable by the Customer and providing credit
references.
(c) marketing goods and services provided by Sahib Limited to the Customer.
6.2
The Customer, if an individual, has a right of access to information
about the Customer held by Sahib Limited. The Customer may request
correction of that information and may require that the request be
stored with that information. Sahib Limited may charge reasonable costs
for providing access to that information.
7 INTELLECTUAL PROPERTY
7.1
Where Sahib Limited has followed a design or instruction furnished by
or given by the Customer, the Customer shall indemnify Sahib Limited
against all damages, penalties, costs and expenses of Sahib Limited or
in respect of which Sahib Limited may become liable through any work
required to be done in accordance with these instructions involving an
infringement of a patent, trademark, registered design or common law
right.
7.2 Should Sahib Limited be required to match any shade or
colour, a light and dark tolerance shall be allowed to such an extent
as shall be agreed by Sahib Limited and the Customer at the time the
standard colour is specified and in the absence of any agreement a
reasonable tolerance shall be allowed.
7.3 Where the Customer
supplies a mould, die, tool, printing plate or any other item used in
the manufacturing process the Customer shall reimburse Sahib Limited
for all maintenance expenses. Sahib Limited shall not be liable for any
loss or damage to moulds, dies, tools or materials supplied by the
Customer to Sahib Limited for the purposes of fulfilling any contract.
7.4
Printing plates, stereos, film, artwork and all other equipment for
specific use in the manufacture of the goods (other than those supplied
by the Customer) remain the property of Sahib Limited unless the cost
thereof (including all development and costs relating thereto) shall
have been fully recovered by Sahib Limited from the Customer in the
costing of the goods already paid for by the Customer.
7.5 All
information prepared by Sahib Limited including, without limitation,
customised pricing, proposals, electronic catalogues, details of
improvements and cost reductions, is the intellectual property of Sahib
Limited and cannot be copied, altered or distributed without Sahib
Limited's prior written consent. Sahib Limited will not be liable for
any alterations made by you.
8 RETURN OF GOODS
8.1 Sahib
Limited will not accept the return of goods for credit or any other
purpose unless Sahib Limited agrees to accept the return of the goods
and advise the Customer a return advice number prior to the return of
goods. Return of goods will only be accepted for credit within 14 days
of delivery, unless due to Sahib Limited's error. Return freight will
be at Sahib Limited's cost only when there has been an error on Sahib
Limited's part.
8.2 No returned goods shall be accepted by Sahib
Limited (even if Sahib Limited agrees to do so) if they have been
tampered with by you or any other person and are not as new, if they
are goods expressly sold on a non-return basis, or if they are not
accompanied by the return advice number referred to in clause 8.1.
Where goods are returned to Sahib Limited but not accepted as above,
they shall be returned to you at your expense.
8.3 Receipt by Sahib
Limited or by any of our agents or representatives of any goods
returned other than in accordance with clauses 8.1 and 8.2 shall not
constitute nor be deemed to constitute Sahib Limited's acceptance of
the return of the goods for credit or any other purpose.
9 RISK
9.1
Risk in the goods shall pass to you at the time when our obligations
under the contract are deemed under clause 5 to be completed.
10 No Responsibility To Sell Mispriced Products Or Services
Sahib Ltd
shall have the right to refuse or cancel any orders placed for products
and/or services listed at an incorrect price, stock, rebate or refund,
or containing any other incorrect information or typographical errors.
Sahib Ltd shall have the right to refuse or cancel any such orders
whether or not the order has been confirmed and you have been charged.
If you have already paid for the order and your order is cancelled.
Sahib Ltd shall immediately issue a refund to your bank account or post
you a cheque.
11 PPSA SECURITY INTEREST
11.1 The Customer
grants to Sahib Limited a Security Interest in the goods and their
Proceeds to secure the obligation of the Customer to pay the purchase
price of the goods and any other obligations of the Customer to Sahib
Limited under this contract (together "the Indebtedness") and, where
the goods and/or Proceeds are not readily identifiable and/or traceable
or their recoverable value is insufficient to pay the indebtedness, the
security interest shall also extend to all the Customers present and
after acquired office equipment, supplies and stationery, of which the
goods form part, to the extent required to secure the Indebtedness.
11.2
As and when required by Sahib Limited the Customer shall, at its own
expense, provide all reasonable assistance and relevant information to
enable Sahib Limited to register a Financing Statement or Financing
Change Statement and generally to obtain, maintain, register and
enforce Sahib Limited's Security Interest in respect of the goods
supplied, in accordance with the Personal Property Securities Act 1999
("PPSA").
11.3 The Customer shall not change its name without first
notifying Sahib Limited of the new name not less than 7 days before the
change takes effect.
11.4 The Customer warrants that the goods are not purchased for use primarily for personal, domestic or household purposes.
11.5
Notwithstanding any reference to a particular invoice/order, where any
sum remains outstanding by the Customer on more than one invoice/order,
any payments received from the Customer shall be deemed to be made by
the Customer and applied by Sahib Limited in respect of each unpaid
invoice/order on a pro rata basis PROVIDED THAT where Sahib Limited
applies payments in this manner it shall not charge interest on overdue
balances that would have been cleared if the payments were not
allocated pro rata.
11.6 Until the Customer has paid all money owing to Sahib Limited the Customer shall at all times ensure that:
(a) the goods supplied by Sahib Limited, while in the Customer's possession, can be readily identified and distinguished; and/or
(b)
all Proceeds (in whatever form) that the Customer receives from the
sale of any of the goods are readily Identifiable and Traceable.
11.7
Where the goods are purchased by the Customer as stock in trade for
sale or lease in the ordinary course of the Customer's business,
nothing in this clause shall prevent the Customer from selling or
leasing and delivering the goods in the ordinary course of the
Customer's business. Otherwise, until the Customer has paid all money
owing to Sahib Limited, the Customer shall not sell or grant a Security
Interest in the goods without Sahib Limited's written consent.
11.8
The parties agree to contract-out of the PPSA in accordance with
Section 11.7 of the PPSA to the extent that Section 11.7 applies for
the benefit of, and does not impose a burden on, Sahib Limited. The
Customer waives its right to receive a Verification Statement in
respect of any Financing Statement or Financing Change Statement
registered by or on behalf of Sahib Limited in respect of the Security
Interest created by these terms and conditions of trade.
11.9 For
the purpose of this clause words and phrases starting with a capital
letter shall have the respective meanings given to them under, or in
the context of, the PPSA.
12 GUARANTEES
12.1 Where the
goods are of a kind ordinarily acquired for personal, domestic or
household use or consumption in accordance with the Consumer Guarantees
Act 1993 and the Consumer Guarantees Act 1993 applies to this contract:
(a)
if any of the goods fail to comply with any guarantee in the Consumer
Guarantees Act, Sahib Limited will repair or replace those goods;
(b)
without excluding Sahib Limited's obligations under the Consumer
Guarantees Act 1993, the Customer acknowledges that Sahib Limited does
not provide any Express Guarantees (as defined in that Act) other than
those expressly confirmed by Sahib Limited in writing;
(c) if the
goods are acquired by the Customer for business purposes, the Customer
agrees that the Consumer Guarantees Act 1993 does not apply;
(d) if
the Customer supplies the goods in trade to a person acquiring them for
business purposes, it must be a term of the Customer's contract that
the Consumer Guarantees Act 1993 does not apply in respect of the
goods; and
(e) if the Customer supplies the goods to any person, the
Customer must not give or make any undertaking assertion or
representation in relation to the goods without Sahib Limited's prior
approval in writing, and the Customer must give the person buying the
goods such product information relating to the goods as Sahib Limited
requires, and the Customer agrees to indemnify Sahib Limited against
any liability or cost incurred by Sahib Limited under the Consumer
Guarantees Act 1993 as a result of any breach by the Customer of these
obligations.
12.2 The following terms apply wherever the Consumer
Guarantees Act 1993 does not apply to this contract, or where the
following terms are not inconsistent with the Consumer Guarantees Act
1993:
(a) Defective goods or goods which do not comply with the
contract may at Sahib Limited's discretion be repaired or replaced, or
the price refunded.
(b) Any right which the Customer may have to reject non-conforming or defective goods will only be effective if:
(i)
the Customer notifies Sahib Limited in writing within fourteen days
following delivery and Sahib Limited is given the opportunity to
inspect the goods; and
(ii) the goods are returned unused, re-saleable and/or in the condition the Customer received them.
(c)
Sahib Limited will not repair or replace, or refund the price of any
goods for so long as the Customer is in default in relation to any
amount owing.
(d) Sahib Limited accepts no liability for any claim
by the Customer or any other person, including without limitation any
claim relating to or arising from:
(i) Any conditions, warranties,
descriptions, representations, conditions as to fitness or suitability
for any purpose, tolerance to any conditions, merchantability or
otherwise, whether express or implied by law, trade custom or
otherwise; or
(ii) Any representations, warranties, conditions or
agreement made by any agent or representative which are not expressly
confirmed by Sahib Limited in writing; or
(iii) Any services forming
part of the supply of the goods which have been performed by any third
party; and the Customer agrees to indemnify Sahib Limited against any
such claim.(e) In any event, Sahib Limited's liability under any claim
shall not exceed the price of the goods.
12.3 Nothing in these terms
is intended to have the effect of contracting out of the provisions of
the Consumer Guarantees Act 1993 except to the extent permitted by that
Act, and these terms are to be modified to the extent necessary to give
effect to that intention.
13 CUSTOMER'S LIABILITY & DEFAULT
13.1 If the Customer shall:
(a)
fail to make any payment due under the contract or commit any other
breach of any of the Customer's obligations under the contract; or
(b) suffer execution under any judgment; or
(c) commit an act of bankruptcy; or
(d) make any composition or arrangement with any creditor; or
(e)
being a company, pass a resolution for winding up or have a receiver
appointed over any of its property or have a winding up petition
presented against it,Sahib Limited (in addition to any other remedies
hereby or by statute conferred) may treat the contract as terminated
and any part of the purchase price then unpaid, together with any other
monies owing hereunder, whether or not due under the terms of the
contract shall forthwith become due and payable. Any such termination
shall be without prejudice to any claim or right Sahib Limited may
otherwise possess.
14 VARIATIONS TO TERMS AND CONDITIONS OF TRADE
14.1
Sahib Limited may from time to time and in its sole discretion amend,
add to or delete any of the terms of these terms and conditions of
trade with immediate effect by giving notice to the Customer PROVIDED
THAT Sahib Limited shall not make any variation to the nature or extent
of the Security Interest granted by the Customer in clause 11.1 without
the written agreement of the Customer. Sahib Limited may notify the
Customer by delivering to the Customer an invoice with these terms and
conditions of trade and receipt of the invoice by the Customer will be
deemed to be acceptance by the Customer of the terms and conditions of
trade.
15 GOVERNING LAW
15.1 These terms of trade are governed by the laws of New Zealand.
14.2
Sahib Limited and the Customer shall submit to the non-exclusive
jurisdiction of the courts of New Zealand in respect of any dispute or
proceeding arising out of these terms and conditions of trade.