Pacific Ultrasonics Standard Terms of Trade

  1. Terms of Contract
    1. Pacific Ultrasonics Ltd (the ‘Seller’) will supply Goods to the purchaser (‘the Buyer’) on these Terms of Trade unless the Seller agrees in writing to change them.
    2. The Seller will not be bound by any conditions included in the Buyer’s order unless it specifically accepts them in writing.
    3. If the Seller does not accept any conditions included in the Buyer’s order, the acceptance of delivery by the buyer will be deemed to be acceptance by the Buyer of these Terms of Trade not withstanding anything that may be stated to the contrary in the Buyer’s enquiries or on the Buyer’s orders.
    4. The Seller has the right to not accept any orders or to cancel any orders which it has accepted if in the opinion of the Seller it would be impractical or uneconomic to fill the order.
    5. For the purposes of these Terms of Trade the word “Goods” means all goods supplied by the Seller to the Buyer, and shall incorporate the description of such goods as included in a quote, order form, invoice or other document provided by the Seller to the Buyer, and also means services provided by the Seller to the Buyer.
  2. Price
    1. Unless otherwise agreed in writing the price for the Goods is stated in New Zealand dollars and shall be the current wholesale price charged by the Seller at the date of delivery.  Unless otherwise agreed prices are GST exclusive and the Buyer shall pay Goods and Services Tax charged on the supply of goods and services including any such tax charged on interest payable pursuant to clause 3.3 below.  Prices quoted apply to stipulated quantities only, and not any lesser or greater quantities.
    2. Unless otherwise agreed in writing prices are ex-factory and all delivery freight and other transport charges are the responsibility of the Buyer.  The additional cost of any special packaging requested by the Buyer shall be added to the invoice.
    3. Quoted prices may be altered at any time before the Buyer takes delivery if wages, salaries, costs or raw materials, freight charges, duty and/or exchange rates fluctuate before that time.
    4. The Seller has the right to require progress payments when the contract or manufacturing period is longer than one month.
  3. Deposits and Payments
    1. Such terms are detailed in Pacific Ultrasonics’s written quotation and are:
      1. Commercial Customers:
        • 35% deposit payable at the time of placing the order
        • 40% progress payment payable prior to product dispatch
        • Balance payable by the 20th of the month following the date of the invoice
          No payment amount may be withheld by the Customer except for the particular Goods or payment amount in respect of which a claim has been made in accordance with clause 9 of these regulations.
          NB: Retentions do not apply to the purchase of Industrial Ultrasonics’s products, standard Warranty provisions.
    2. Service, Maintenance and Repairs
      1. Commercial customers invoiced amount payable on the 20th of the month following service.
    3. Failure to pay for Goods by the due date may result in further production being stopped until the overdue payments have been made.  The Seller reserves the right to request from the Buyer such guarantee or security as it may think desirable to secure to the Seller all sums due by the Buyer and may refuse to supply Goods to the Buyer until such guarantee or security is given.
    4. In the event of late payment (and to enable the extra costs incurred by the Seller arising from late payment to be recovered) the Seller may charge interest on a daily basis to the Buyer at a rate equal to 5% per annum over the seller’s bank overdraft rate from time to time, until the overdue amounts are paid, with the interest accruing after as well as before any judgement which the Seller may obtain against the Buyer.
    5. The Buyer shall pay all costs incurred by the Seller (including costs on a solicitor-client basis and debt collector’s costs) incurred in registration of a financing statement or a financing charge statement, protection or preservation of its security interest or its registration, recovery or attempted recovery of outstanding moneys, and the enforcement of these Terms of Trade or the Seller’s security interest.
    6. The Buyer may not set off against the price payable for the Goods any claims the Buyer might have against the Seller.
    7. The Seller may accept and apply payments from the Buyer in respect of any indebtedness without prejudice to its rights and remedies and the Seller will not be bound by the conditions or qualifications attaching to such payments.
    8. The Seller may apply payments from the Buyer in reduction of the Buyer’s outstanding indebtedness in such order and manner as the Seller determines.
  4. Retention of title
    1. Ownership of the Goods shall not pass to the Buyer until the Buyer has paid in full all amounts owing to the Seller whatsoever.  Until such payments have been made:
      • The Goods supplied are held by the Buyer as bailee to be sold by the Buyer as agent for the seller.
      • The Buyer will if directed by the Seller store the Goods in such a way that it is clear that they are the property of the Seller.
      • The Seller will be entitled without notice to enter any premises where the Goods may be stored and to remove any Goods owned by the Seller as aforesaid without in any way being liable to the Buyer or any other person claiming through the buyer.
      • If the Goods are resold by the Buyer before all amounts owing by the Buyer to the Seller have been fully paid, the proceeds of such resale shall, upon written notice from the Seller to the Buyer, be paid by the Buyer into a separate account from which the Buyer shall pay all sums owing to the Seller.
  5. Personal Property Securities Act (“PPSA”)
    1. In consideration of the seller supplying the Goods to the Buyer, at the request of the Buyer, the Buyer, by signing these Terms of Trade:
      1. Grants to the Seller a purchase money security interest (“PMSI”) as defined in the PPSA in the Goods; and
      2. Agrees that any of the Goods or proceeds of sale of the Goods coming into existence after  the date of these Terms of Trade will come into existence subject to the PMSI granted herein and the terms of these Terms of Trade without the need for any further action or agreement by any party; and
      3. Acknowledges that the Buyer has received valuable consideration from the Seller and agrees that it is sufficient; and
      4. Agrees that the PMSI has attached to all goods supplied now or in the future to the buyer and that the attachment of the PMSI has in no way been deferred or postponed from the date recorded herein.
    2. The Seller reserves the right to register a financing statement in respect of any Goods supplied by the Buyer to the Seller pursuant to these Terms of Trade and in respect of which credit has been extended by the Seller to the Buyer.
    3. At the request of the Seller, the Buyer will promptly make, do, execute and deliver (or cause to be made, done, executed and delivered ) any documents, contracts, agreements or deeds that the Seller may require from time to time to give effect to these Terms of Trade, including without limitation, doing all such things as the Seller may require in order to ensure that the PMSI created under these Terms of Trade constitutes a perfected security interest over the Goods, including providing any information the Seller requests enable it to complete a financing statement or financing change statement.
    4. The Buyer must forthwith advise the Seller of any change of its name or any other particulars required in order for the Seller to complete a financing statement or financing change statement.
    5. The Buyer waives any right to receive a verification statement under the PPSA.
    6. The Seller and Buyer agree that nothing in sections 114(1)(a), 116, 117(1)(c), 119, 120(2), 121, 125-7, 129, 131, 132, 133 and 134 of the PPSA shall apply to these Terms of Trade or the security interest under these Terms of Trade.
  6. Risk
    1. Risk in the Goods passes to the Buyer when the Goods are delivered to the Buyer or into the custody of a carrier appointed by the Buyer.  The Buyer will keep the Goods comprehensively insured against all insurable risks for their full replacement value from the time they are delivered until they are paid for in full.
    2. If any of the Goods are damaged or destroyed prior to ownership in them passing to the Buyer, the Seller shall be entitled to receive all insurance proceeds which are payable in respect of such Goods and the production of these Terms of Trade by the Seller shall be sufficient evidence of the Seller’s right to receive payment of such insurance proceeds without the need for further enquiry by any person dealing with the Seller.
  7. Delivery
    1. Delivery shall be deemed to be completed upon either receipt of the Goods by or on behalf of the Buyer, or upon receipt of the Goods by a carrier appointed by the Buyer for delivery to the Buyer, whichever happens first.
    2. The Seller will use best endeavors to see that deliveries are made according to schedule but any period for delivery are approximate only and the Seller will not be responsible for delivery delays or any consequent loss on behalf of the Buyer due to causes beyond its control.
    3. Goods may be delivered in installments.
    4. Delivery of up to 10% above or below the quantities ordered is allowed unless otherwise agreed.
  8. Warranties
    1. Subject to the following clauses 8.2 to 8.4 the Seller warrants that the Goods are manufactured in accordance with the usual practices of the plastics industry and are free from all defects in workmanship and materials.
    2. No warranty is given, and the Seller shall not be liable:
      • In respect of Goods which have been designated “seconds”, “mediums” or “specials”.
      • Loss caused by any factors beyond the Seller’s control.
      • Failure to deliver the Goods by any specified dates.
      • Any indirect or consequential loss of any kind.
    3. The Seller’s total liability for defective or damaged Goods is limited at the Seller’s option to either:
      • Replacing the defective or damaged Goods; or
      • Refunding the price of the defective or damaged Goods.
    4. For the purposes of section 5D of the Fair-Trading Act 1986 (“FTA”) and section 43 of the Consumer Guarantees Act 1993 (“CGA”), the parties acknowledge and agree that, to the extent permitted by law:
      1. the Goods provided to the Seller are being provided and acquired in trade;
      2. in respect of all matters covered in these Terms of Trade, the parties are contracting out of the CGA and sections 9, 12A and 13 of the FTA; and
      3. It is fair and reasonable for the parties to be bound by this clause.
    5. Except under clause 8.1 the Seller has no liability for the Goods and gives no representations or warranties in relation to them.  All other warranties expressed or implied by law are excluded.
  9. Claims
    1. The Seller will at its option either replace what the Seller in its sole discretion considers to be defective Goods or give a credit or refund for them as long as the Buyer’s claim has specifically identified the Goods and the defect and the Buyer returns the defective Goods to the Seller in their delivered state within 10 working days after delivery.
    2. Goods must be returned freight paid and the Buyer can claim for any reasonable freight charges.
    3. The Buyer shall have no claim in relation to Goods which it has processed, altered or utilized.
  10. Cancellation
    1. The Buyer may not cancel any order or part of it without the Seller’s written consent and as a condition of giving such consent the Seller may require that it be reimbursed for any direct or indirect costs incurred by the Seller as a result of the cancellation.
    2. The Seller shall be entitled without liability to the Buyer to cancel an      order or delivery of an order if:
      • The Buyer becomes insolvent; or
      • The Buyer or Seller is refused any required licenses or permits in respect of the Goods.
  11. Waiver
    If the Seller waives any breach of these Terms of Trade by the Buyer, the waiver will not affect the Seller’s right to exercise its rights under these Terms of Trade at any future time.
  12. Severability
    Each clause in these Terms of Trade is severable and if any clause is held to be illegal or unenforceable then the remaining clauses will remain in full force and effect.
  13. Governing Law
    The Terms of Trade shall be interpreted in accordance with and governed by the laws of New Zealand and the New Zealand courts shall have exclusive jurisdiction over any dispute in relation to the Goods.
  14. Indemnity and Warranty by the Buyer
    1. The Buyer shall indemnify and keep the Seller indemnified from and against any loss, liability, claim, suit and costs caused by, arising out of or relating to the manufacture and/or design of the Goods and packages or containers relating to the Goods if the Goods, packages or containers are required by the Buyer to be made in accordance with the Buyer’s design or specification.
    2. The Buyer warrants, having made reasonable enquires that:
      • the drawing of any shape or goods which have been supplied or are proposed to be supplied to the Buyer and which has been endorsed by the Buyer;
      • any toolage made in accordance with such drawing;
      • the manufacture of any shape or goods from such toolage; and
      • any shape or goods made from such toolage shall not infringe upon the rights of any third party (whether copyright, registered design, patent, trademark, confidential information or otherwise or breach any applicable law.
    3. In the event of any claim, action, suit, demand, order for costs (including legal expenses on a solicitor and client basis) or damages or an account of profits referable to the rights and/or laws referred to in paragraph (b) being made or brought against the Seller, the Buyer shall indemnify and keep the Seller indemnified from and against the same.
    4. Should the Seller:
      • have reason to believe the Buyer is in breach of its warranty in paragraph (b); or
      • become aware of circumstances whereby the Seller can claim under the indemnities in paragraphs (a) or (c) the Seller may (without having to give notice thereof to the Buyer) cancel or suspend all further manufacture and deliveries of the goods or toolage.
  15. Contracting Party
    The Seller reserves the right to place any contract with any of its associate manufacturing companies in which case that associate shall be deemed to be the Seller for the purposes of these Terms of Trade.