Electronic Navigation Limited (referred to in these terms as "us", "we" or "ENL") will only supply and sell Goods and/or Services to you (being the person referred to as the "Customer" above and referred to in these terms as "you") on the following terms and conditions unless we agree in writing to vary these terms and conditions.
1. Provision of Goods and Services
1.1 You have requested Goods and/or Services from us in an Order. You agree that these terms and conditions of sale apply to all Orders.
1.2 No additional conditions you may have included in an Order will apply unless confirmed by us in writing.
1.3 An Order may not be withdrawn unless agreed by us in writing and, if agreed to by us in writing, will be subject to payment by you of all costs, expenses and losses incurred by us as a result of such withdrawal (as reasonably determined by us).
1.4 We may require you to provide at least one credit reference acceptable to us prior to us providing you with any Goods and/or Services.
1.5 You acknowledge that all information including, but not limited to, all specifications, illustrations, dimensions and weights furnished by us or otherwise contained in any catalogues, price lists or other advertising matter are approximate only.
2. Withholding Supply
2.1 We reserve the right, irrespective of whether or not an Order has been accepted by us, and without notice to you, to withhold supply to you, and we will not be liable for any costs, expenses, losses or damages resulting directly or indirectly from such action, where:
(a) we have insufficient Goods to fulfill the Order or the Goods ordered have been discontinued; or
(b) we have determined, in our absolute discretion, that credit should not or no longer be extended to you.
3. Payment, Deposit and Default
3.1 Unless we otherwise agree in writing:
(a) Payment for Goods must be made prior to Delivery of Goods.
(b) Payment for installation and general service work is due within 7 days of the date of our invoice.
3.2 We require payment of a 35% Deposit prior to us ordering any Goods or providing any Services. You agree that any deposit is non-refundable.
3.3 Unless otherwise specified in our invoice, all prices are in New Zealand dollars and are exclusive of Goods and Services Tax, which you must pay when invoiced.
3.4 If you:
(a) do not pay any amount owed to us on the due date; or
(b) fail to fulfill your obligations under this Agreement or otherwise breach any term of this Agreement,
we may, without notice to you, immediately suspend the delivery of Goods and/or the provision of Services and we will not be liable for any costs, expenses, losses or damages resulting directly or indirectly from such action.
3.5 If any amount which you owe us falls overdue for payment, such late or non payment shall constitute a breach of your obligations under this Agreement and the overdue amount shall (without prejudice to any other right or remedy under this Agreement) bear default interest from the date on which payment of that amount falls overdue until the date on which payment of the overdue amount is made in full. Default interest shall be calculated daily at the Default Interest Rate and shall be compounded monthly.
4. Prices, Delivery, Risk and Title
4.1 You acknowledge that our price lists for the supply of Goods are:
(a) based on manufacturers' prices, costs of freight and exchange rates current as at the date of our latest price list. If any of those costs increase prior to the date of Delivery, or if there is any miscalculation on the face of an invoice, the prices stated in the invoice may be increased/amended accordingly;
(b) inclusive of the cost of delivering the Goods to us from the manufacturer by sea freight. If you choose a different method of delivery of the Goods to us, the prices stated in our invoice may be increased/amended accordingly;
(c) exclusive of the cost of Delivery.
4.2 Risk in the Goods will pass to you on Delivery. Title to the Goods remains with us until payment in full of all amounts owed by you to us in cleared funds has been received by us. Until payment has been received and title passes, the Goods will be held by you on bailment and be kept separate and identifiable.
4.3 If we arrange for Delivery and any Goods are lost or damaged before risk passes to you, we will, at our option, replace, repair, or give credit for the Goods provided that you have notified us within 7 days of Delivery (in the case of damaged or short delivery) or the intended date of Delivery (in the case of non-delivery of all of the Goods).
4.4 Notwithstanding anything else contained in this Agreement, while we will use reasonable endeavours to comply with your particular Delivery requirements and Order specifications, you will not be entitled to cancel the whole or part of your Order or to claim compensation by reason of our failure to comply with your Delivery requirements (including the date of Delivery) or any minor variations to the Goods as a result of changes to the specifications, dimensions or weight of those Goods.
5. Security Interest
5.1 You acknowledge and agree that this Agreement constitutes a security agreement for the purposes of the PPSA and we retain a purchase money security interest in all Goods to secure our interest in the Goods and all moneys owing or payable by you under this Agreement. All Goods sold to you are sold subject to a security interest in favour of us and we have the right to call for or recover the Goods at our option and you are obliged to deliver up the Goods if so directed by us.
5.2 Our security interest in the Goods:
(a) continues in any new goods into which those goods are attached, fixed or incorporated; and
(b) extends to any proceeds, book debts and accounts receivable arising from selling the Goods.
5.3 You waive any right to receive verification that our security interest in the Goods has been registered on the Personal Property Securities Register and agree that where relevant, the following sections of the PPSA are not applicable to this agreement, sections 114(1)(a), 116, 117(1)(c), 119, 120(2), 121, 125, 126, 127, 129 and 131 to 134 (inclusive).
5.4 You will, at your cost, arrange and maintain insurance for all Goods (which are at your risk but title of which has not passed) to their fullest replacement value, such insurance cover to name us as an additional insured and you agree to provide us with satisfactory evidence of such cover on request from time to time.
5.5 You irrevocably authorise us and our employees and agents to enter any premises occupied by you on which Goods are situated at any time after any breach of this Agreement by you (or before a breach if we reasonably believe a breach is likely to occur) and to remove and repossess any Goods and any other property to which Goods are attached or in which such goods are incorporated. We shall not be liable for, and you agree to indemnify us for, any costs, damages, expenses or losses incurred by you or any third party as a result of this action, or liability either in contract or in tort or otherwise in any way whatsoever. We may either:
(a) resell any repossessed Goods and credit the your account with the net proceeds of sale (after deduction of all repossession, storage, selling and other costs); or
(b) retain any repossessed goods and credit your account with the invoice value less such sum as we reasonably determine on account of wear and tear, depreciation, obsolescence, loss of profit and costs.
6. Warranty and Limitation of Liability
6.1 We exclude all statutory or implied conditions and warranties to the fullest extent permitted by law. All Goods and/or Services are only warranted to the extent mandatorily implied by law.
6.2 Subject to clause 6.1, to the fullest extent permitted by law, we limit our liability to you arising howsoever from the supply of (or failure to supply) any Goods and/or Services, or the quality or performance of the Goods and/or Services, to:
(a) in relation to the supply of Goods:
(i) the replacement of the Goods or the supply of equivalent Goods;
(ii) the repair of the Goods; or
(iii) the reasonable cost of replacing or repairing the Goods;
(b) in relation to the supply of Services, the value of those Services as provided in this Agreement.
6.3 We agree to use reasonable endeavors to procure any warranties for Goods available from the manufacturers or suppliers of those Goods.
7.1 We may terminate this Agreement by notice in writing to you if any of the following events occurs:
(a) you do not pay any amount owed to us on the due date;
(b) you fail to fulfill your obligations under this Agreement or otherwise breach any term of this Agreement
(c) it becomes, or will become, illegal for you to comply with your obligations under this Agreement or all or part of this Agreement becomes invalid or unenforceable;
(d) you cease or threaten to cease to carry on your business;
(e) you are unable to pay your debts or are deemed or presumed to be unable to pay your debts, or take any step to benefit any of your creditors or stops or threatens to stop payments; or
(f) a receiver, administrator or similar official is appointed in relation to any asset of you or you request the appointment of, or an application is made for the appointment of, any of those officials;
(g) an application is made or any steps taken for the bankruptcy or liquidation of you or you are declared or become bankrupt or insolvent; or
(g) any step is taken to appoint, or with a view to appointing, a statutory manager or similar official of or to you (including the making of any recommendation under the Corporations (Investigation and Management) Act 1989, or you are declared at risk under that Act).
7.2 Termination of this Agreement by us will be without prejudice to our accrued rights, remedies and liabilities under this Agreement.
7.3 You may not terminate this Agreement for any reason without first providing us:
(a) written notice of the breach or cause pursuant to which you purport terminating this Agreement; and
(b) 30 days from the date of receipt by us of such notice to reasonably remedy such breach or cause.
7.4 Should this Agreement be terminated for any reason, you agree to immediately:
(a) pay us all amounts owing by you to us and we may retain any deposit paid;
(b) pay us for the proportion of the Services which have been provided up to the Termination Date on receipt of an invoice in relation to those Services;
(c) pay us for any Goods which we have supplied to you on or prior to the Termination Date on receipt of an invoice in relation to those Goods; and
(d) pay us for all expenses, charges or costs falling due for payment after the Termination Date which arise from commitments reasonably incurred by us prior to the Termination Date on receipt of an invoice in relation to those expenses, charges or costs.
8. Privacy Act 1993
8.1 You authorise us to obtain credit or trade references about you from any suitable person and/or organisation and to verify any information provided by any such person and/or organisation for the purpose of determining whether to extend credit to you.
8.2 If you are an individual, you have a right of access to information about you held by us and you may request correction of that information and require that the request be stored with that information. We may charge our reasonable costs of providing access to that information.
9.1 You shall pay to us, upon demand, all costs and expenses on a full indemnity basis (including GST and reasonable legal fees on a solicitor and own client basis) incurred by us in connection with the enforcement or preservation of, or attempted enforcement or preservation of, any rights under this Agreement, or in suing for or recovering any moneys payable by you under this Agreement.
10.1 You agree to indemnify us against any claims, losses, damages, liabilities and expenses of whatever nature:
(a) to the extent that they arise in whole or in part out of your use, installation or operation of the Goods;
(b) arising in whole or in part by any breach of this Agreement by you.
11.1 Notwithstanding anything contained in any correspondence between us or elsewhere, this Agreement constitutes the entire terms and conditions of the agreement between us in relation to the Goods and/or Services and will prevail over all prior arrangements, negotiations, proposals, correspondence or previous dealings between us (whether written or oral).
11.2 You acknowledge that in entering into this Agreement you did not rely on any representations.
11.3 No amendment to this Agreement shall be valid unless in writing and executed by all parties in the same manner as that in which this Agreement has been executed.
12.1 You agree not to assign this Agreement or your rights under this Agreement without our prior written consent;
12.2 The laws of New Zealand govern this Agreement.
12.3 You agree with us to submit to the exclusive jurisdiction of the Courts of New Zealand and agree that any legal proceedings may be heard in those courts.
13.1 "Agreement" means these terms and conditions of sale.
13.2 "Default Interest Rate" means that rate equal to the overdraft rate charged by our bank to us plus a margin of 5% per annum.
13.3 "Delivery" means either:
(a) when you pick up the Goods from us; or
(b) the arrival of the Goods on the site nominated by you.
13.4 "Deposit" means 35% of the total contract amount unless otherwise specified by us in writing.
13.5 "Goods" means all goods supplied by us to you from time to time including (but not limited to) the goods described in an Order from you.
13.6 "Order" means an order for Goods from you to us.
13.7 "PPSA" means the Personal Property Securities Act 1999.
13.8 "Services" means all services provided by us to you from time to time including (but not limited to) the services described in an Order from you.
13.9 "Termination Date" means the date on this Agreement is terminated.