In these Terms we have used "we”, “us” and “our” to refer to Asona Limited and "you" to refer to you, our customer. By agreeing to acquire goods (and any associated services) from us you agree to these Terms to the exclusion of your own terms (if any). When we use the term “Goods” below, this means all goods (together with any associated services) that are supplied by us to you.
1. ORDERING
1.1. If we provide you with a quote, that quote is not a legally binding contract.
1.2. Rather, orders for Goods must be made in writing and delivered to us. Orders that we receive from you will be treated as an offer by you, and are therefore subject to acceptance by us. “Acceptance” means accepted in writing by us (including by sending you an email with our formal acceptance document) or, in the absence of written acceptance, by our delivery of the Goods to you. Once an order has been accepted, it is final and binding on you and may not be changed or cancelled by you without our written consent.
1.3. We may cancel or amend any order for Goods after Acceptance if we feel it is impractical or uneconomic to supply and as otherwise set out in these Terms, provided that this clause 1.3 shall not apply if you are a “consumer” under the Fair Trading Act 1986 (“FTA”).
2. PRICE
2.1. You are required to pay the price for Goods at the time that an order is Accepted. We will not, and are not required to, inquire as to the authority of any person placing an order on your behalf.
2.2. Unless we agree otherwise, all prices quoted or stated by us are exclusive of any GST and other taxes and
duties which might apply.
2.3. The price for Goods may vary in line with any increase or decrease in the cost of any items (including any change in currency exchange rates), the cost of supply, production and/or delivery of the Goods between the date on which we provided that price and the date of delivery. We may also vary our prices to take account of any costs incurred by us as a result of the method of payment you use (for example, we may charge an additional fee if you pay by credit card).
2.4. If we have to undertake any unexpected or additional work as a result of a lack of precision in the specifications you provide to us, or if you alter your specifications after the date of these Terms, we may charge you additional fees.
3. TERMS OF PAYMENT
3.1. We will not commence manufacturing or dispatching the Goods to you, or make purchase of special items until
you have paid all required amounts to us.
3.2. If payment isn’t made by the due date, we have the right to charge interest on overdue amounts at the rate of
interest we are normally charged when borrowing funds under an overdraft facility with our trading bank, plus a
margin of 2% per annum, calculated on a daily basis.
3.3. You will pay any expenses, costs or disbursements we may incur in recovering any outstanding amounts
(including debt collection, agency fees and legal costs) from you.
3.4. If we require you to pay a deposit to us, that deposit will be shown as a credit on the next invoice to you.
3.5. We are not obliged to supply Goods to you on credit. If we decide to grant credit to you, you must pay our invoices by the 20th of the month following the date of the invoice.
3.6. From time to time, we may require further securities from you, and you agree to provide such securities in the form required by us, and to comply with all of your obligations under those securities.
3.7. At any time, we may notify you that we are going to stop supplying Goods to you on credit. If we do so, you will
satisfy your existing obligations to pay all amounts you owe to us.
3.8. All payments shall be made without set-off or deduction, and we can apportion payments to outstanding accounts as we see fit.
4. DELIVERY
4.1. Unless otherwise agreed, all Goods will be delivered to the address you have specified in your Purchase Order.
4.2. On delivery once the goods have been signed for, you accept the goods have been received in good order free from damage.
4.3. If we give you an estimate of the date for delivery of the Goods (or any part of them), that delivery date is an estimate only. Whilst we will try to meet any pre-arranged delivery dates, we do not guarantee when Goods will be delivered, and we will not be liable for any loss or damage that arise from delays in delivery.
4.4. Any delay in delivery does not give you the right to cancel your order with us.
4.5. Where the contract involves more than one delivery, these conditions apply to each and every delivery.
4.6. If you refuse to accept delivery of any Goods, we may charge you for any additional costs we incur, including storage and transportation costs.
5. RISK AND OWNERSHIP
5.1. You become responsible for, and bear all risks relating to, the Goods supplied to you at the time we deliver those Goods to you. However, we will remain the legal owner of all Goods up until the time that you have paid us all amounts you owe us (regardless of what those debts relate to).
5.2. If you sell Goods supplied by us (or part of those Goods) before you have paid for them in full, the proceeds of that sale shall be our property.
5.3. If you attach or incorporate any Goods we have supplied to you with or into any other goods you own, we will remain the owner of those Goods until you have paid us all amounts you owe us (regardless of what those debts relate to). Further, we may at our absolute discretion remove the Goods we have supplied you in any manner, and we will not be liable in any way to you for any damage which may be caused to those other items.
6. DEFAULT
6.1. You will be in “Default” if:
(a) you fail to pay an amount due to us on or before the due date for payment; or
(b) you commit a breach of any of your obligations under:
(i) these Terms;
(ii) under any existing or future security we hold which secures your obligations under these
Terms; or
(iii) the terms of any other contract between us;
(c) you become insolvent, are wound up, have a receiver appointed, enter into any composition or arrangement with your creditors, do any act which would render you liable to be placed in liquidation or have a receiver appointed over your property, commit an act of bankruptcy, cease to be of full legal capacity, or die;
(d) Goods that we still own (see clause 4.6) become at risk; or
(e) an event or a series of events (whether related or not) occurs which, in our opinion, may make you unable to meet your obligations to us.
6.2. If you are in Default then we may, at our option, do any one or more of the following:
(a) charge you interest on overdue amounts as per 3.2 above;
(b) require you to fix the Default in the manner and within the period that we tell you;
(c) require you to pay to us all amounts you owe us immediately;
(d) suspend or terminate your account with us;
(e) enforce security interests created by these Terms;
(f) exercise any rights that we have under these Terms or that are available to us at law.
6.3. We may suspend or terminate your account with us at any time in our sole discretion. If your account is terminated, you must immediately pay us any amount you owe us. Termination will not affect any of our rights that have arisen before termination.
7. PERSONAL PROPERTY SECURITIES ACT 1999
7.1. Until you pay us all amounts owed to us by you, we shall have a ‘security interest’ in all Goods that we have supplied to you (together with all Goods that are supplied to you in the future by us), and you acknowledge and agree that:
(a) These terms and conditions constitute a security agreement for the purposes of section 36 of the Personal Property Securities Act 1999 ("PPSA"); and
(b) The company has a security interest in all goods previously supplied by the company to the customer (if any) and all goods that will be supplied in the future by the company to the customer (if any).
7.2. The customer undertakes to:
(a) Sign any further documents and provide any further information which the company may reasonably
require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) Indemnify the company for all expenses incurred in registering a financing statement or financing change request on the Personal Property Securities Register or releasing any item charged thereby;
(c) Not register a financing change statement or a change demand on the Personal Property Securities Register without the prior written consent of the company;
(d) Give the company not less than 14 days’ prior written notice of any proposed change in the customer’s name or any of the customer’s contact details (including, but not limited to, changes in the customer's address, facsimile number or business practice).
7.3. The customer waives their right to receive a verification statement in accordance with section 148 of the PPSA
and waives their rights contained in sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA.
8. WARRANTIES
8.1. The Consumer Guarantees Act 1993 (CGA), the FTA and other New Zealand laws may impose warranties, conditions or obligations upon us which we cannot exclude by law (or which can only be excluded to a limited extent). Unless these Terms expressly state otherwise, we exclude all such imposed warranties, conditions or obligations to the extent permitted by law and exclude any warranty, condition or obligation imposed or implied under common law, equity or otherwise.
8.2. If you acquire Goods from us “in trade” pursuant to sections 2 and 43 of the CGA, both parties acknowledge and agree that: (i) the Goods are both supplied and acquired in trade; (ii) the parties contract out of sections 9 (misleading and deceptive conduct generally), 12A (unsubstantiated representations), 13 (false or misleading representations) and 14(1) (false representations and other misleading conduct in relation to land) of the FTA; and (iii) all warranties, conditions and other terms implied by the CGA or the sections of the FTA referenced above are excluded from these Terms to the fullest extent permitted by law. The parties agree and acknowledge that the exclusions contained in this clause 8.1 are fair and reasonable.
8.3. You acknowledge and agree that you have relied upon your own inquiries and examination of the Goods and upon such independent advice or consultation as you may require for that purpose. You also agree that you purchase the Goods upon your own independent knowledge, skill and judgement, particularly as to the particular use or suitability of the Goods for your purposes and to all other characteristics and specifications of the Goods.
9. LIABILITY
9.1. Subject to clause 9.2 we will, where the CGA applies, accept liability for any breach of the statutory guarantees
implied by law under the CGA.
9.2. If you acquire or hold yourself out as acquiring Goods for the purposes of a business, our liability under the CGA is expressly excluded and, in that case or in any other case where the CGA does not apply, our liability in respect of or in any way related to these Terms (whether in contact, torts or otherwise) is limited to the replacement or repair (at our discretion) of any defective Goods. We shall only be liable for such replacement/repair where the Goods have been used within the limits of what they have been designed for, properly cared for and maintained.
10. CANCELLATION
10.1. Once you have placed an order with us and that order has been Accepted, you are not able to cancel or vary
that order without our written agreement. If we do agree in writing to allow you to cancel or vary an order, you will be required to pay us for all costs we incur relating to either the pre-manufacturing or manufacturing of any or all products, including imported Goods, that were ordered by you before we agreed to the cancellation/variation.
11. RETURNS AND CREDITS
11.1. Provided the Goods have been correctly supplied, we are not obliged to accept the return of any of them.
However, we may decide to accept returns in some circumstances.
11.2. We will only accept returns of Goods that are a standard stock item, and all Goods that you propose to return must be in a new condition and in the original container or packaging and undamaged and accepted by us at
the time of return delivery. Specifically ordered or non-stock items are not returnable.
11.3. All costs of returning the Goods, including freight, are at your cost.
11.4. We will charge you, and deduct from the amount credited to you, a restocking and handling fee equal to 20% of the sale value of the Goods returned.
12. PACKAGING
12.1. We may charge a deposit in respect of any pallets, containers or cartons (“packaging”) used in the delivery or packaging of the Goods. Where we charge such a deposit, the packaging remains our property and we will only provide you with a refund of the deposit paid once you have returned the packaging to us, at your own cost, in good condition and within a reasonable time from the date on which Goods were delivered to you.
13. INTELLECTUAL PROPERTY
13.1. Any technical information, knowledge or processing methods at any time transmitted either orally or in writing by us to you shall remain our property and shall be treated absolutely confidentially by you. You shall not use that information for any purpose nor sell, transfer or divulge it in any manner to anyone without our prior written consent.
14. GENERAL
14.1. These Terms replace any earlier representations, warranties, understandings and agreements (whether oral or written) between the parties, and together with your Credit Application form the entire agreement between us and you relating to the matters dealt with in those documents.
14.2. You shall not transfer or assign any of your rights, powers or obligations under these Terms unless you obtain
our prior written consent to you doing so.
14.3. We may change these Terms at any time. Any change applies from the time we inform you of the change or, if you are a “consumer” under the FTA, seven (7) days from the date on which we inform you of the change.
Asona Limited
Factory: Unit 12-16, 7 Cain Road, Penrose, Auckland
Postal: PO Box 96-241, Balmoral, Auckland
Phone: +64 (0)9-525-6575
Email: info@asona.co.nz