Terms and Conditions of Trade
These terms and conditions of trade apply to all our Sale of Goods and Services Contracts. Any order for goods and services placed with Nitram Enterprises Limited ("Our", "Us", "We", or "Nitram Enterprises Limited") by you ("You" or "Customer") constitutes your agreement to be bound by these terms. Any additional or different terms you stipulate or state in any communication with Nitram Enterprises Limited (including an order) are hereby objected to and will not bind Nitram Enterprises Limited unless Nitram Enterprises Limited agrees in writing.
No sales person, representative or agent is authorised by Nitram Enterprises 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 SALE AND PURCHASE
1.1 Your placement of an order with us ("Order") constitutes an offer by you to purchase goods and services from us on these terms. The Order is placed when it is submitted to us.
1.2 Order is accepted only when we notify you that we accept your Order. Delivery of goods constitutes notice of our acceptance of the order.
1.3 Unless otherwise agreed in writing with Nitram Enterprises Limited, you must not purchase goods from us for the purpose of resale. Nitram Enterprises Limited reserves the right to reject any Order for any reason whatsoever including where Nitram Enterprises Limited believes that the goods are being acquired for the purpose of resale.
1.4 If we accept the Order, a binding contract between you and us will arise on these terms (the Contract).
The Contract may be amended only by written agreement between us and you.
2 PRICE AND PRICE VARIATION
2.1 Prices quoted are including GST unless otherwise stated. Unless otherwise agreed in writing, the price of the goods and services will be the current price on the day of order. We may change our prices from time to time without notice. Prices do not include any delivery fees. We are entitled to charge a delivery fee, which will be calculated by reference to the goods purchased and the post code of the address stated in the Order.
2.2 Nitram Enterprises 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 Nitram Enterprises Limited of carrying out the whole or any part of the contract arising from any of the following:
(a) delays in delivery of the goods or services as a result of instructions or lack of instructions from the Customer, the Customer's failure or inability to full the obligations under the contract or any action or inaction by the Customer or other circumstances beyond Nitram Enterprises Limited's control;
(b) variation in the cost of Nitram Enterprises 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 Nitram Enterprises Limited or any of its representatives.
3.1 Nitram Enterprises Limited reserves the right to suspend sales and services of further goods if the terms of payment are not strictly adhered to by the Customer.
3.2 Interest may be charged on overdue accounts at a rate of 2.5%.
3.3 Any expenses, costs or disbursements incurred by Nitram Enterprises Limited in recovering any outstanding monies including debt collection agency fees or solicitor's costs shall be paid by the Customer.
3.4 You must pay us any fees or costs imposed on us if any payment you make to us is dishonoured or reversed.
3.5 Unless otherwise agreed, the purchase price shall be paid to Nitram Enterprises Limited at its address by the 20th of the month following the month in which the invoice was dated. Payment will not be accepted by any means other than cash, cheque, direct credit or direct debit.
3.6 If any account is in dispute, the undisputed portion of the account shall be payable in accordance with the normal terms of payment as provided in 3.5. Payment of the disputed portion may be withheld provided the matter is brought to Nitram Enterprises Limited's attention immediately it is discovered and a letter of explanation setting out the particulars of the dispute is sent to Nitram Enterprises Limited within seven days of the dispute arising.
3.7 The Business Account 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 Nitram Enterprises Limited of such fraudulent use. The burden of proving such use was fraudulent shall lie with the Customer.
3.8 The Business Account Customer shall endeavour to return all goods acquired by fraudulent use.
4 PRIVACY ACT 1993
4.1 The Customer authorises Nitram Enterprises 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 Nitram Enterprises Limited for the purpose of recovering amounts payable by the Customer and providing credit references.
(c) marketing goods and services provided by Nitram Enterprises Limited to the Customer.
4.2 The Customer, if an individual, has a right of access to information about the Customer held by Nitram Enterprises Limited. The Customer may request correction of that information and may require that the request be stored with that information. Nitram Enterprises Limited may charge reasonable costs for providing access to that information.
5 RETURN OF GOODS
5.1 Subject to clause 7.1, Nitram Enterprises Limited will not accept the return of goods for credit or any other purpose unless Nitram Enterprises 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 purchase, unless due to Nitram Enterprises Limited's error. Nitram Enterprises Limited reserves the right to charge for returned goods, excepting for when there has been an error on Nitram Enterprises Limited's part.
5.2 No returned goods shall be accepted by Nitram Enterprises Limited (even if Nitram Enterprises Limited agree 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 5.1. Where goods are returned to Nitram Enterprises Limited but not accepted as above, they shall be returned to you at your expense.
6 PPSA SECURITY INTEREST
6.1 The Customer grants to Nitram Enterprises Limited a Security Interest in the goods and services and their Proceeds to secure the obligation of the Customer to pay the purchase price of the goods and services and any other obligations of the Customer to Nitram Enterprises 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 outdoor power equipment or other equipment and/or parts, of which the goods form part, to the extent required to secure the Indebtedness.
6.2 As and when required by Nitram Enterprises Limited the Customer shall, at its own expense, provide all reasonable assistance and relevant information to enable Nitram Enterprises Limited to register a Financing Statement or Financing Change Statement and generally to obtain, maintain, register and enforce Nitram Enterprises Limited's Security Interest in respect of the goods supplied, in accordance with the Personal Property Securities Act 1999 ("PPSA"). Customer hereby waives its right under section 148 of the PPSA to receive a copy of any Verification Statement.
6.3 The Customer shall not change its name without first notifying Nitram Enterprises Limited of the new name not less than 7 days before the change takes effect.
6.4 Where the Customer is a Business Account Customer, the Customer warrants that the goods are not purchased for use primarily for personal, domestic or household purposes.
6.5 Until the Customer has paid all money owing to Nitram Enterprises Limited the Customer shall at all times ensure that:
(a) the goods and services supplied by Nitram Enterprises 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.
6.6 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 Nitram Enterprises Limited, the Customer shall not sell or grant a Security Interest in the goods without Nitram Enterprises Limited's written consent.
6.7 The parties agree to contract-out of the PPSA in accordance with Section 107 of the PPSA to the extent that Section 107 applies for the benefit of, and does not impose a burden on, Nitram Enterprises 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 Nitram Enterprises Limited in respect of the Security Interest created by these terms and conditions of trade.
6.8 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.
Defective / non-conforming goods
7.1 Where the goods are acquired for personal, domestic or household use 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, Nitram Enterprises Limited will repair or replace those goods;
(b) without excluding Nitram Enterprises Limited's obligations under the Consumer Guarantees Act 1993, the Customer acknowledges that Nitram Enterprises Limited does not provide any Express Guarantees (as denied in that Act) other than those expressly confirmed by Nitram Enterprises 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 Nitram Enterprises Limited's prior approval in writing, and the Customer must give the person buying the goods such product information relating to the goods as Nitram Enterprises Limited requires, and the Customer agrees to indemnify Nitram Enterprises Limited against any liability or cost incurred by Nitram Enterprises Limited under the Consumer Guarantees Act 1993 as a result of any breach by the Customer of these obligations.
7.2 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 Nitram Enterprises 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 Nitram Enterprises Limited in writing within fourteen days following delivery and Nitram Enterprises 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) Nitram Enterprises 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) Nitram Enterprises 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 Nitram Enterprises 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 Nitram Enterprises Limited against any such claim.
(e) in any event, Nitram Enterprises Limited's liability under any claim shall not exceed the price of the goods.
7.3 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.
8 CUSTOMER'S LIABILITY & DEFAULT
8.1 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, Nitram Enterprises 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 Nitram Enterprises Limited may otherwise possess.
9 VARIATIONS TO TERMS AND CONDITIONS OF TRADE
9.1 Nitram Enterprises 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 Nitram Enterprises Limited shall not make any variation to the nature or extent of the Security Interest granted by the Customer in clause 6.1 without the written agreement of the Customer.
10 GOVERNING LAW
10.1 These terms of trade are governed by the laws of New Zealand.
10.2 Nitram Enterprises 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.