Terms Of Trade
The terms of trade set out below govern
all of the supplies of goods and services from Aeroqual Limited ("Aeroqual",
"we", "us") to the Customer ("you").
They will replace any terms and conditions contained in any document
used by you and purporting to have contractual effect, and your acceptance
of any goods or services from Aeroqual indicates your acceptance of
these terms of trade. These terms of trade are effective from 1 September
2002 and replace all earlier terms of trade between you and Aeroqual.
1. Prices
| 1.1 |
All prices are subject to alteration without notice. |
| 1.2 |
You agree to pay goods and services tax and any other government
duties, levies or taxes in respect of the goods or services. |
| 1.3 |
Orders may be cancelled only if Aeroqual agrees in writing
to the cancellation and the order has not been processed. |
2. Delivery and risk
| 2.1 |
You are responsible for risk in the goods from
the earlier of the time they are received by a carrier for delivery
to you, or the time they are received by you or your agent. |
| 2.2 |
You agree to pay all delivery costs. If we deliver
any order in parts, then each delivery is a separate contract. |
| 2.3 |
You do not have the right to possess goods until
they are delivered to you or collected by you. Where you ask
us to deliver goods directly to another person, that person
takes possession of the goods for you as your agent. |
| 2.4 |
All claims for shortage or delivery damage must be made to
the carrier and to Aeroqual within 3 business days of the date
of delivery. |
| 2.5 |
We will make every effort to ensure delivery of goods, 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. |
3. Payments and Property
| 3.1 |
Unless we have agreed in writing to extend credit
to you in another manner, you must pay for all goods in full
before delivery or collection. |
| 3.2 |
Where we have agreed to extend credit to you,
you must pay in full, without deduction or setoff, by the 20th
day of the month following the date of invoice. Your payment
is made only when funds have fully cleared through the banking
system into our bank account. |
| 3.3 |
If you have not paid in full by the due date,
we may charge you interest compounding monthly on the unpaid
overdue balance at the rate of 5% per annum above the current
overdraft rate charged by our bankers, and we may charge costs
(including collection costs and legal costs on a solicitor-client
basis) and suspend delivery of further goods or performance
of further services until the account is paid. |
| 3.4 |
Payments which you make to us will be applied
first to any sum of money which is owed in respect of service
work, then to payment for 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. |
| 3.5 |
Property and ownership in goods, whether in their
original form or incorporated in or attached to another product,
will not pass to you but will remain with Aeroqual until Aeroqual
receives payment in full of the purchase price of the goods
and all other amounts that you owe to Aeroqual for any reason.
|
| 3.6 |
Until property passes to you, you shall hold
any goods in trust for Aeroqual, and store and sell them in
a manner to enable them to be identified and cross-referenced
to particular invoices. |
| 3.7 |
Unless otherwise notified in writing, where goods
are sold to you as inventory for resupply, you are authorised
to sell the goods in the ordinary course of your business, but
you must keep the proceeds of any goods sold in a separate account
in trust for Aeroqual |
| 3.8 |
You must not resell or part with possession of
any goods or equipment that we supply for your use before you
have paid for it in full, unless we have given you written consent. |
| 3.9 |
Notwithstanding clauses 3.1 and 3.2 above, all
payments shall immediately become due to Aeroqual if we reasonably
believe that the information which you have given us in your
application for credit is not correct or no longer correct,
and you have failed to give us correct information within 5
days of our request, if, without our consent you sell or otherwise
dispose of any goods which have not been paid for, if you become
insolvent, commit any act of bankruptcy, or if a receiver, liquidator
or statutory manager is appointed over any of your assets or
undertaking, if you fail to comply with any of the provisions
of clause 5, or if you make or attempt to make an arrangement
or composition with creditors. |
| 3.10 |
Where Aeroqual reasonably believes you are or
will be in breach of any part of clauses 3 or 4 of this agreement,
Aeroqual or its agent may enter your premises without further
notice to remove any goods which are the property of Aeroqual,
including goods which are installed in or affixed to other goods,
and you indemnify Aeroqual against all costs and claims in respect
of its exercise of rights under this clause 3. |
4. Security Interests
| 4.1 |
If we extend credit to you or if you owe us money
for any reason, you agree to grant us a security interest in
the property that we have supplied to you. You agree that you
will do all acts necessary and provide us on request all information
we require to register notice of that security interest over
the goods and their proceeds, 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. The goods and services subject to the security
interest will be described on our invoices. |
| 4.2 |
You agree that you will supply Aeroqual, within
2 business days of its written request, with copies of all security
interests registered over your personal property, and you authorise
Aeroqual 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. |
| 4.3 |
You agree that Aeroqual, at its option 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 Aeroqual, whether or
not the change was initiated by you. |
| 4.4 |
If we repossess goods under this agreement, we
may retain those goods or dispose of them without notice or
statement of account to you or any other person, and, after
deducting reasonable costs of sale, we may credit any surplus
by way of setoff against any sums owing to us. We will not be
obliged to resupply any repossessed inventory. |
| 4.5 |
You authorise us to search any Personal Property
Securities Register at any time for any information about you
or (if you are a company) your parent or associated companies.
|
5. Aeroqual Warranties
| 5.1 |
Where the Consumer Guarantees Act applies to
the supply of goods or services under these terms of trade,
you may have additional rights under that Act. |
| 5.2 |
Aeroqual warrants that it will replace, or at
its option repair, goods supplied under this agreement, which
it accepts as defective, provided that you notify Aeroqual in
writing of any defect within 14 days of delivery. |
| 5.3 |
Any warranty may be voided by damage to or misuse
of the goods, negligent installation or operation, inadequate
packaging, installation in corrosive or damp atmospheres, the
application of solvents, incorrect lubricants or corrosive material
to the goods, incorrect cleaning or maintenance, unauthorised
repairs, modifications or the addition of hardware, software
or consumables not supplied by Aeroqual. |
| 5.4 |
Where the goods or services that you acquire
from Aeroqual are not of a kind ordinarily acquired for personal
household or domestic use or consumption, or where you acquire,
or hold yourself out as acquiring, the goods or services for
the purposes of a business, the provisions of the Consumer Guarantees
Act 1993 (NZ) or the Trade Practices Act (Australia), and the
conditions, warranties and guarantees set out in any state's
Sale of Goods Act, or otherwise implied by statute or common
law will not apply and are excluded from these terms of trade
to the fullest extent allowable by law. |
6. Customer Warranties
| 6.1 |
If you acquire any goods from Aeroqual for
re-supply as, or incorporate or attach any goods acquired
from Aeroqual into, goods or services ordinarily acquired
for personal household or domestic use or consumption ("Consumer
Products") you warrant that:
(a) 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 Consumer
Guarantees Act 1993; and
(b) If your customer acquires the goods for re-supply, your
customer and each person in the distribution chain will exclude
liability in its contract for supply for any claims under
the Consumer Guarantees Act 1993,
but in each case only where the end user/consumer acquires
the Consumer Products for business purposes. |
| 6.2 |
You agree to indemnify Aeroqual against any failure
by you, your customers or any person in your distribution chain
to properly contract out of liability to business end users/consumers
under the Consumer Guarantees Act 1993. |
7. Limitation of liability
| 7.1 |
Aeroqual will not be liable for any losses of
any kind or any delay in supplying goods or services which are
caused in whole or in part by force majeure including (but not
limited to) any act of God, natural disaster, flood or earthquake,
strike, lockout, fire, war, civil commotion, network service
failure, inability to obtain products or supplies including
the imposition of any export or import bans, or any other cause
beyond its reasonable control. |
| 7.2 |
Subject to clause 5.1, Aeroqual's liability shall
be limited to the value of any goods supplied, and Aeroqual,
and its employees, contractors and agents, any manufacturer(s)
or developer of the goods or any of their materials or components
and any 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 limitation of liability includes, but is not
limited to, costs (including costs of returning goods to Aeroqual
or to any manufacturer), loss of data, consequential loss, loss
of contracts, loss of profits and 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 specifications and design, and faulty
materials or components of the goods. |
8. Intellectual property rights
| 8.1 |
Neither Aeroqual nor its suppliers transfers
any right, title or interest in any copyright, trademarks, or
other intellectual property rights relating to any of the goods
or software to you. |
| 8.2 |
Where Aeroqual supplies software to you, Aeroqual
licenses you to use that software only in conjunction with products
supplied by Aeroqual, and you must not modify, reverse engineer,
decompile, disassemble, recompile, sell or redistribute or otherwise
deal with the Data or the Software. |
| 8.3 |
Where you require Aeroqual to modify or adapt software, you
warrant that Aeroqual has the right to make that modification
or adaptation, and you indemnify Aeroqual against all costs
and losses whatsoever, including claims from third parties,
which arise as a result of Aeroqual carrying out your requests. |
| 8.4 |
Where Aeroqual produces or adapts software for you or designs
equipment for you, you agree that Aeroqual will have all intellectual
property rights in that new software or adaptation, including
copyright. |
9. Compliance with applicable US Laws
| 9.1 |
You warrant that all technology, technical information
and technical data received directly or indirectly by you from
Aeroqual under these terms of trade is intended solely for the
use of you and your customers. All "Direct Products"
(as defined in the United States Department of Commerce Comprehensive
Export Schedule) of such technology, technical information and
technical data are intended solely for the use of you and your
customers within such countries as are not forbidden or restricted
now or hereafter by United States Export Administration laws;
and those Direct Products shall not be exported except in strict
compliance with all United States Export Administration laws
and all other applicable United States laws, as now or hereafter
exist. Aeroqual expressly reserves the right to refuse any order
that, in Aeroqual's sole judgment is or may be a violation of
such laws on the part of you or your customers. |
10. Personal Information
| 10.1 |
Aeroqual will use any personal information that
you supply for credit, administration, service and marketing
purposes. You have the right of access to, and to ask for correction
of, your personal information. |
| 10.2 |
You authorise any person or company to provide
Aeroqual with any information it may require in response to
your application for credit and/or other enquiries. |
11. General Conditions
| 11.1 |
Aeroqual reserves the right to change these terms
of trade from time to time by notice to you in writing. |
| 11.2 |
If Aeroqual fails to enforce any terms or to
exercise its rights under these terms of trade at any time,
Aeroqual has not waived those rights. |
| 11.3 |
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. |
| 11.4 |
Any agreement between you and Aeroqual is governed
by the laws of New Zealand. You agree that any dispute is subject
to the exclusive jurisdiction of the New Zealand courts although
Aeroqual reserves the right to commence any proceedings against
you in any other court. |
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