1.1 All Goods and/or Services provided to the Customer by TEST&TAG are subject to the following terms and conditions ("Terms"). These Terms, together with any credit application or works requisition or similar order form constitute the entire agreement ("agreement") between the Customer and TEST&TAG for the Goods provided and/or Services performed.
1.2 Any amendments to these Terms must be agreed by TEST&TAG in writing.
1.3 If any provision of these Terms is invalid or unenforceable for whatever reason, the remaining provisions shall remain in full force and effect.
1.4 If the Customer is a company or trust, each director or trustee (as the case may be) of the Customer who signs these Terms warrants that he/she is authorised to enter into the contract on behalf of the Customer.
1.5 If anything in these Terms is inconsistent or conflicts with any provision of any credit application form or other document between the parties, these Terms shall prevail.
1.6 The Customer must not assign or transfer any of their rights or obligations under this Agreement to any other person.
1.7 If, at any time, TEST&TAG does not enforce any of these Terms or grants the Customer time or other indulgence, TEST&TAG will not be construed as having waived that term or its rights to later enforce that or any other term.
1.8 These Terms are subject to and governed by the laws of New Zealand.
1.9 If the Customer orders or accepts Goods or Services, the Customer will be deemed to have accepted these Terms.
2.1 In these Terms and in any credit application or works requisition or similar form:
"TEST&TAG" means TEST&TAG International Limited and includes any trading division as part of TEST&TAG International Limited that supplies Goods and/or Services to the Customer.
"Customer" means the Customer named on any credit application form, works requisition or similar order form, and includes any part placing an order with Test & Tag.
"Goods" means all goods or chattels provided by TEST&TAG to the Customer.
"Services" means all services provided by TEST&TAG to the Customer.
2.2 Headings are used as a matter of convenience only and shall not affect the interpretation of these Terms.
3 Use of Information
3.1 For the purposes of facilitating the administration of TEST&TAG business, the Customer authorises TEST&TAG:
3.1.1 To collect all information it may require about the Customer from any third parties and authorises those third parties to release that information to TEST&TAG;
3.1.2 To hold all information given by the Customer or any third party to TEST&TAG; and
3.1.3 To use that information including giving the information to any other person to facilitate collection of debts from the Customer.
3.2 The information will be collected, held and used on the condition that:
3.2.1 It will be held securely at the TEST&TAG Offices referred to on the credit account application, works requisition or similar order form and/or TEST&TAG invoice;
3.2.2 It will be accessible to any of TEST&TAG employees and agents who need access to it for the administration of TEST&TAG business; and
3.2.3 The Customer may request access to and correction of it at any time.
4 Price and Quotations
4.1 Unless otherwise expressly stated, all prices will be those applying at the date of delivery and will exclude freight charges.
4.2 Unless otherwise stipulated in writing, the price of all Goods and Services excludes any amount payable in respect of GST, which will be paid by the Customer in addition to the price.
4.3 Quotations are based on cost of labour, materials and equipment, freight and variable and fixed expenses and, where appropriate, rates of currency exchange operating at the date of quotation. Any increase in the cost to TEST&TAG which may occur between the date of quotation and delivery shall be payable by the Customer and any such increase shall include a pro rata increase in TEST&TAG profit margin.
4.4 Any variation in the quantity of Goods supplied to the Customer after the date of the quotation shall be at the Customer's expense. The Goods shall be priced at either the price applicable to the original quantity under the quotation or such other price as TEST&TAG may determine in its absolute discretion.
4.5 Unless the Seller has agreed in writing that any prices agreed to by the parties in relation to the supply of Goods are to be fixed, the Seller reserves the right to vary any prices to take account of increases in wages, salaries, costs of materials or services, alterations in customs, tariffs, insurance, freight or exchange rates or other causes not reasonably foreseeable by the Seller between the date of such prices being agreed to and the date of delivery of the Goods.
5.1 All Goods and Services must be paid for in full no later than the 20th of the month following the month in which work has been completed.
5.2 TEST&TAG may, however, in its absolute discretion, allow payment on some other basis specified in writing by TEST&TAG.
5.3 Payment must be made by the due date by way of cleared funds in full without deduction, counterclaim or set off whatsoever.
5.4 Unless otherwise agreed in writing the amount payable shall be that shown on the TEST&TAG invoice.
5.5 If the Customer disputes any or all of an amount contained in an invoice, the Customer will:
5.5.1 Immediately notify TEST&TAG of the dispute and provide reasons for the dispute;
5.5.2 Pay the full amount of the Invoice including the disputed amount by the due date specified in the invoice; and
5.5.3 Negotiate in good faith with TEST&TAG to resolve the dispute.
5.6 If payment is not made by the due date TEST&TAG may, without prejudice to its other remedies, charge the Customer a late payment of fee of $20 per month for which payment remains outstanding.
5.7 TEST&TAG may deduct or withhold any amount (whether by way of counterclaim, set-off or otherwise) from any money owing by TEST&TAG to the Customer on any account whatsoever.
6.1 If the price of any Goods includes the costs of delivery, unless otherwise agreed by TEST&TAG prior to delivery, the price of the Goods excludes the costs of delivery of the Goods by the usual methods of transportation used by TEST&TAG, between the hours of 7.30am and 5pm Monday to Friday (excluding statutory holidays). TEST&TAG may, if the Customer requests, arrange for Goods to be delivered by other means or at other times, but will be entitled to charge the Customer for any additional costs that Test & Tag may incur.
6.2 TEST&TAG will endeavour to have the Goods delivered on the agreed delivery dates but will not be held liable for late delivery. Late delivery does not entitle any Customer to cancel any order or part order.
6.3 Delivery will be deemed to have been made when Goods arrive at the delivery point agreed with the Customer or if the Customer is to arrange delivery of the Goods, when the Goods are available for collection by the Customer. The Customer or its authorised representative must sign TEST&TAG’s copy of the delivery docket or packing slip before the Goods are unloaded or collected.
6.4 All claims for errors in delivery or for Goods damaged in transit must be made to TEST&TAG within two days of delivery in respect of Goods delivered by courier, and within seven days of delivery in respect of Goods delivered by any other means or Goods collected by the Customer, and in accordance with the procedures advised by TEST&TAG from time to time.
6.5 If the Customer fails or refuses to take delivery of any Goods at an agreed delivery time, TEST&TAG may (without limiting any other rights or remedies TEST&TAG may have) charge the Customer for any expenses or additional costs incurred by TEST&TAG as a result of delay.
7.1 If the Customer fails to make payment on any invoice when due or becomes insolvent, commits an act of bankruptcy, is adjudicated bankrupt or makes any composition or arrangement with creditors or being a company goes into liquidation whether compulsory or voluntary other than for the purpose of and followed by amalgamation or reconstruction, or has a receiver appointed of any part of its business or assets then TEST&TAG reserves the right, and the Customer agrees that TEST&TAG is entitled:
7.1.1 To treat all sums due or to become due from the Customer whatsoever as immediately due and payable;
7.1.2 To immediately cancel or suspend delivery of Goods and the provision of Services;
7.1.3 By its agents to enter onto the Customer's premises where the Goods may be installed or stored and to search for and remove and take possession of the Goods without being in any way liable to the Customer or anyone claiming under it for so doing; and
7.1.4 To withhold the further supply of Goods and Services on credit.
7.2 Any expenses, disbursements and legal costs incurred by TEST&TAG in the enforcement of any rights contained in these Terms shall be paid by the Customer, including any reasonable solicitor’s fees or debt collection agency fees.
9 Security and Title
9.1 TEST&TAG retains legal and equitable title to any Goods supplied to the Customer until full payment is made for the Goods and all other Goods and Services supplied by TEST&TAG.
9.2 Notwithstanding that ownership of any Goods may remain with TEST&TAG; all risk in relation to any Goods supplied will pass to the Customer on delivery.
9.3 The Customer gives irrevocable authority to TEST&TAG to enter any premises occupied by the Customer, or any other party on which Goods and Services are situated, at any reasonable time after default by the Customer, in order to remove and repossess any Goods, and to sell those Goods if necessary to recover unpaid monies.
9.4 The Customer grants TEST&TAG a “security interest” for the purposes of section 36(b) of the Personal Property Securities Act 1999 (the PPSA) in all present and after acquired Goods as security for the Customer’s obligations to TEST&TAG.
9.5 The Customer is to execute documents and do such further acts as may be required by the Company to register the “security interest” granted to TEST&TAG under these Terms under the PPSA.
9.6 Until ownership of the Goods passes, the Customer waives its right under the PPSA:
9.6.1 To receive a copy of any verification statement;
9.6.2 To receive a copy of any financing charge statement;
9.6.3 To receive any notice that TEST&TAG intends to sell the Goods or to retain the Goods on enforcement of the “security interest” granted to TEST&TAG under these Terms;
9.6.4 To object to a TEST&TAG proposal to retain the Goods in satisfaction of any obligation owed by the Customer to TEST&TAG;
9.6.5 To receive a statement of account on sale of the Goods;
9.6.6 To redeem the Goods; and
9.6.7 Where any Goods become an “accession” (as defined in the PPSA), to not have any Goods damaged when TEST&TAG removes the accession, to receive notice of the removal of the accession and to apply to the court for an order concerning the removal of an accession.
10.1 TEST&TAG may review, limit, vary or withdraw credit at any time without liability to the Customer.
10.2 If TEST&TAG shall at any time deem the credit of the Customer to be unsatisfactory, it may require security for payment in a form satisfactory to TEST&TAG in its absolute discretion and may suspend performance of its obligations under the agreement until the provision of such security.
12 Exclusion and Limitation of Liability
12.1 Except as expressly provided in these Terms, all warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise relating in any way to the Goods, Services or to these Terms are, to the maximum extent permitted by law, expressly excluded.
12.2 Nothing in these Terms limits any rights the Customer has under the Consumer Guarantees Act 1993 (“Act”) and these Terms must be read subject to those rights.
12.3 Where these Terms would otherwise be subject to the Act and the Customer is acquiring the Goods and/or Services supplied by TEST&TAG for business purposes, the Customer agrees that the Act will not apply.
12.4 Except where applicable law expressly requires otherwise, TEST&TAG is not liable in any event for any special, indirect or consequential damage, loss or injury of any kind, or for any loss of business, profit, data or anticipated savings, suffered by the Customer or any other person, however caused, even if TEST&TAG had been advised of the possibility of such damage, loss or injury.
12.5 Insofar as TEST&TAG may be liable, the maximum liability of TEST&TAG, whether in contract, tort (including negligence), equity, under statute or otherwise for any loss, damage or injury arising directly or indirectly from any breach of TEST&TAG’s obligations under the agreement is, except where applicable law expressly requires otherwise, limited, at the option of TEST&TAG, to any one or more of the following:
12.5.1 If the breach relates to Goods:
(a) The replacement of the Goods or the supply of equivalent Goods;
(b) The repair of such Goods;
(c) The payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
(d) The payment of the cost of having the Goods repaired; and
12.5.2 If the breach relates to Services:
(a) The supplying of the Services again; or
(b) The payment of the cost of having the Services supplied again.
12.6 TEST&TAG is not liable for any failure or delay in performing an obligation in these Terms if it is due to a cause reasonably beyond its control.
13 Service Level Agreements
13.1 Service Level agreements may be entered into in negotiation between TEST&TAG and the Customer;
13.2 Service level agreements do not take effect until such time as both TEST&TAG and the Customer have fully agreed upon all terms, and both have signed the final agreement;
13.3 Any terms contained in service level agreements which do not follow the standard terms of trade supersede the standard terms of trade;
13.4 Minimum terms of service level agreements are 2 years, and maximum terms are 5 years;
13.5 Ever Green Agreements may be entered into negotiation between TEST&TAG and the Customer.