TERMS AND CONDITIONS OF TRADE OF AMTECH MEDICAL
1.0 Definitions and Interpretation
“Credit” means the sale on Goods on the basis of credit sales with payment
as set out in these Terms of Trade.
“Goods” means medical supplies, and any other products supplied by the
Seller to the Customer (and where the context so permits shall include any
supply of services as hereinafter defined) and includes Goods described on
any invoices, quotation or any other forms as provided by the Seller to
the Customer.
“Price” means the price payable for the Goods as agreed between the Seller
and the
Customer in accordance with clause 3.0 of this contract.
In this Agreement unless a contrary intention appears:
A reference to a person includes any other entity or association
recognised by law and the reverse.
Any reference to any of the parties includes that party's executors,
administrators or permitted assigns, or if a company, it's successors or
permitted assigns or both.
Any reference to more than one person binds and benefits those persons
jointly and severally.
2.0 Acceptance
2.1 Any instructions received by the Seller from the Customer for the
supply of Goods and/or the Customer’s acceptance of Goods supplied by the
Seller shall constitute acceptance of the terms and conditions contained
herein.
2.2 Upon acceptance of these terms and conditions by the Customer the
terms and conditions are binding and can only be amended with the written
consent of the Seller.
3.0 Price and Payment
3.1 At the Seller’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by the Seller to the Customer in
respect of Goods supplied; or
(b) the Seller’s quoted Price (subject to clause 3.2) which shall be
binding upon the Seller provided that the Customer shall accept the
Seller’s quotationin writing within thirty (30) days.
3.2 The Seller reserves the right to change the Price in the event of a
variation to the
Seller’s quotation. In any case, the Customer understands that in the
nature of the medical supply business, that all pricing provided may be
adjusted or aligned if in the opinion of the seller, an unsustainable
price increase has been notified from the supply lines of the seller.
Customer understands that Amtech Medical distributes many different
products from many different supply lines, and it is not possible to
always pre-notify Customers
3.3 At the Seller’s sole discretion a deposit may be required.
3.4 Time for payment for the Goods shall be of the essence and will be
stated on the invoice or any other forms. If no time is stated then
payment shall be due onthe 20th of the month following the date of the
invoice. Some items require payment before goods leave premises, and if
this s required, you will be advised accordingly.
3.5 Payment shall be made by cash, cheque, bank cheque, direct credit, or
by any other method agreed between the Customer and the Seller.
3.6 GST shall be added to the Price.
3.7 The Seller will enter into no negotiations, discussions or common
understandings with any customer or potential customer about the levels or
suitability of its pricing in either, writing, telephone discussions, or
inferences, in regard to what other respective customers, industry groups,
buying groups may or may not pay This is confidential and privileged to
each and every individual client.
3.8 Delivery charges for hospital and capital/bulky items will be quoted
as per order based on the size of the order and delivery destination.
The customer will be notified via phone or email.
4.0 Delivery of Goods
4.1 Delivery of the Goods shall take place at the Seller’s premises unless
the Seller agrees to deliver Goods to the Customer’s nominated address.
4.2 If the Seller agrees to deliver Goods the costs of delivery shall be
in addition to the
Price unless the Seller otherwise agrees in writing.
4.3 The Customer shall make all arrangements necessary to take delivery of
the Goods if the Seller delivers Goods and if the Customer is unable to
take deliverythe Seller shall be entitled to charge a reasonable fee for
redelivery.
4.4 Delivery of the Goods to a third party nominated by the Customer is
deemed to be delivery to the Customer.
4.5 If the Seller delivers Goods the delivery fee shall be invoiced and
paid for in accordance with the provisions in these terms and conditions.
4.6 The Seller shall not be liable for any loss or damage whatever due to
failure by the Seller to deliver the Goods (or any of them) promptly or at
all, where dueto circumstances beyond the control of the Seller.
5.0 Risk
5.1 Notwithstanding that the Seller retains ownership of the Goods until
paid in full all risk for the Goods passes to the Customer on delivery.
5.2 If any Goods is damaged or destroyed following delivery but prior to
ownership passing to the Customer, the Seller is entitled to receive any
insurance proceeds payable for the Goods. The production of these terms
and conditions by the Seller is sufficient evidence of the Seller’s rights
to receive the insuranceproceeds without the need for any person dealing
with the Seller to make further enquiries.
6.0 Title
6.1 The Seller and Customer agree that ownership of the Goods shall not
pass until:
(a) the Customer has paid the Seller all amounts owing for the Goods in
accordance with this Agreement; and
(b) the Customer has met all other obligations due by the Customer to the
Seller in respect of all contracts between the Seller and the Customer.
6.2 Payment other than cash shall not be deemed to be payment until that
form of payment has been honoured, cleared or recognised.
6.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable
until the Seller shall have received payment and all other obligations of
theCustomer are met; and
(b) until such time as ownership of the Goods shall pass from the Seller
to the Customer the Seller may give notice in writing to the Customer to
return any Goods to the Seller (unless sold) and sale proceeds paid to
clear monies owing by the Customer to the Seller. Upon such notice being
given the rightsof the Customer to obtain ownership or any other interest
in the Goods shall cease; and
(c) the Customer is only a bailee of the Goods and until such time as the
Seller has received payment in full for the Goods then the Customer shall
hold any proceeds from the sale or disposal of the Goods on trust for the
Seller; and
(d) if the Customer fails to return the Goods to the Seller then the
Seller or the Seller’s agent may enter upon and into land and premises
owned, occupied or used by the Customer, or any premises where the Goods
are situated as the invitee of the Customer and take possession of the
Goods, andthe Seller will not be liable for any reasonable loss or damage
suffered as a result of any action by the Seller under this clause.
(e) The Customer recognises that many products may not be returnable as
the general nature of our products is medical products which may
haveregulatory obligations limiting the returnability of product.
(f) If the Customer is not completely satisfied with goods or items
supplied, the Customer may request a refund or replacement of goods. A
full refund or replacement will be supplied at the sole discretion of the
Seller. If the goods are surplus to Customers requirements, the Seller at
its discretion may give a partial or full refund.
7.0 Personal Property Securities Act 1999 (“PPSA”)
7.1 Upon agreeing to these terms and conditions in writing the Customer
acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the
purposes of the PPSA; and
(b) a security interest is taken in all Goods previously supplied by the
Seller to the Customer (if any) and all Goods that will be supplied in the
future bythe Seller to the Customer.
7.2 The Customer undertakes to:
(a) sign any further documents and/or provide any further information
(such information to be complete, accurate and up-to-date in all respects)
whichthe
Seller may reasonably require to register financing statements or
financing change statements on the Personal Property Securities Register;
(b) immediately advise the Seller of any material change in its business
practices of selling the Goods which would result in a change in the
nature of proceeds derived from such sales.
7.3 The Seller and the Customer agree that nothing in sections 114(1)(a),
133 and 134 of the PPSA shall apply to these terms and conditions.
7.4 The Customer waives its rights as a debtor under sections 116, 120(2),
121, 125, 126, 127, 129, 131 and 132 of the PPSA.
7.5 Unless otherwise agreed to in writing by the Seller, the Customer
waives its right to receive a verification statement in accordance with
section 148 of thePPSA.
7.6 The Customer irrevocably nominates constitutes and appoints the Seller
or the Seller’s nominee as the Customer’s true and lawful attorney to
perform all necessary acts to give effect to the provisions of this clause
7.0.
8.0 Customer’s Disclaimer
8.1 To the full extend permitted by law the Customer hereby disclaims any right to rescind, or cancel any contract with the Seller or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by the Seller and the Customer acknowledges that the Goods are boughtrelying solely upon the Customer’s skill and judgment.
9.0 Defects
9.1 The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Seller of any allegeddefect which should be reasonably apparent, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods is defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Seller has agreed inwriting that the Customer is entitled to reject, the Seller’s liability is limited to (at the Seller’s discretion) replacing the Goods, or discounting the Price of the Goods by an amount agreed to between the Customer and the Seller. Goods will not be accepted for return other than in accordance with this clause.
10.0 Warranty and Liability
10.1 To the extent permitted by law, no warranty is given by the Seller as
to the quality or suitability of the Goods for any purpose and any implied
warranty, is expressly excluded.
10.2 Warranty and Liability is expressly excluded where in the opinion of
the Seller, the product or service that has been supplied has been used in
part of in full beyond the scope and design of the intended use.
10.3 The Seller shall not be responsible for any direct or indirect loss
and/or expense (including loss of profit) suffered by the Customer and if
the Seller incurs anyliability such liability shall be limited to damages
which under no circumstances shall exceed the Price of the Goods in
respect of which liability arises.
11.0 Consumer Guarantees Act 1993
11.1 The Seller agrees to abide by all terms laid out by the Consumer Guarantees Act 1993.
12.0 Default and consequences of Default
12.1 Interest on overdue invoices shall accrue from the date when payment
becomes due daily until the date of payment at a rate of 1.5% per calendar
month andsuch interest shall compound monthly at such a rate after as well
as before any judgment.
12.2 If the Seller exercises its rights under clause 7.0 or the Customer
defaults in respect of any obligations herein (including payment of any
invoice when due)the Customer shall indemnify the Seller from and against
all costs (including legal costs on a solicitor/client basis) and
disbursements incurred by the Seller.
12.3 Without prejudice to any other remedies the Seller may have, if at
any time the Customer is in breach of any obligation (including those
relating to payment),the Seller may suspend or terminate the supply of
Goods to the Customer and any of its other obligations under the terms and
conditions. The Seller will not beliable to the Customer for any loss or
damage the Customer suffers because the Seller has exercised its rights
under this clause.
12.4 Without prejudice to the Seller’s other remedies at law the Seller
shall be entitled to cancel all or any part of any order of the Customer
which remains unfulfilled and all amounts owing to the Seller shall,
whether or not due for payment, become immediately payable in the event
that:
(a) any money payable to the Seller becomes overdue, or in the Seller’s
opinion the Customer will be unable to meet its payments as they fall due;
or
(b) the Customer becomes insolvent, convenes a meeting with its creditors
or proposes or enters into an arrangement with creditors, or makes an
assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar
person is appointed in respect of the Customer or any asset of the
Customer.
13.0 Cancellation
13.1 The Seller may cancel any contract to which these terms and
conditions apply or cancel delivery of Goods at any time before the Goods
are delivered bygiving written notice to the Customer. On giving such
notice the Seller shall repay to the Customer any sums paid in respect of
the Price. The Seller shall not beliable for any loss or damage whatever
arising from such cancellation.
13.2 In the event that the Customer cancels delivery of the Goods the
Customer shall be liable for any loss incurred by the Seller (including,
but not limited to, anyloss of profits) up to the time of cancellation.
14.0 Privacy Act 1993
14.1 The Customer and the Guarantor authorises the Seller to:
(a) collect, retain and use any information about the Customer, for the
purpose of assessing the Customer’s creditworthiness or marketing products
and services to the Customer; and
(b) disclose information about the Customer, whether collected by the
Seller from the Customer directly or obtained by the Seller from any other
source,to any other credit provider or any credit reporting agency for the
purposes of providing or obtaining a credit reference, debt collection or
notifying a default by the Customer.
14.2 Where the Customer and/or Guarantor are an individual the authorities
under clause 14.1 are authorities or consents for the purposes of the
Privacy Act 1993.
14.3 The Customer and/or Guarantor shall have the right to request the
Seller for a copy of the information about the Customer and/or Guarantor
retained by theSeller and the right to request the Seller to correct any
incorrect information about the Customer and/or Guarantor held by the
Seller.
15.0 General
15.1 If any provision of these terms and conditions shall be invalid,
void, illegal or unenforceable the validity, existence, legality and
enforceability of the remaining provisions shall not be affected and shall
remain of full force and effect.
15.2 This Agreement shall be governed by the laws of New Zealand.
15.3 The Seller shall have a right of set off in respect of any monies due
under this Agreement by the Customer in respect of any monies owed to the
Customer bythe Seller. The Customer shall not be entitled to set off
against or deduct from the Price any sums owed or claimed to be owed to
the Customer by the Seller.
15.4 The Seller may license or sub-contract all or any part of its rights
and obligations without the Customer’s consent.
15.5 Neither party shall be liable for any default due to any act of God,
war, terrorism, strike, lock-out, industrial action, fire, flood, drought,
storm or other event beyond the reasonable control of either party.
15.6 The Customer shall give the Seller not less than fourteen (14) days
prior written notice of any proposed change of ownership of the Customer
(if a Company) or any change in the Customer’s name and/or any other
change in the Customer’s details (including but not limited to, changes in
the Customer’s address, facsimile number, or business practice).
15.7 The failure by the Seller to enforce any provision of these terms and
conditions shall not be treated as a waiver of that provision, nor shall
it affect the Seller’sright to subsequently enforce that provision.