1. DEFINITIONS
1.1 “Kea Trailers New Zealand Limited” shall mean Kea Trailers New Zealand Limited, the seller, or any other agent or employee thereof.
1.2 “The customer” shall mean, the dealer or any person or company acting on behalf of and with the authority of the customer.
1.3 “Goods” shall mean all goods, chattels, or services provided by Kea Trailers New Zealand Limited to the customer and shall include all charges for labour and work, hire charges, insurance charges, or any fee or charge associated with the supply of goods by Kea Trailers New Zealand Limited to the customer.
1.4 “Price” shall mean the cost of the goods as agreed between Kea Trailers New Zealand Limited and buyer subject to clause 4 of this contract.
2. ACCEPTANCE
2.1 Any instructions received by Kea Trailers New Zealand Limited from the customer for the supply of goods shall constitute acceptance of the terms and conditions contained herein.
3. PRIVACY ACT
3.1 The customer authorises Kea Trailers New Zealand Limited to collect, retain and use any information about the buyer, or for the purpose of assessing the customer’s credit worthiness, enforcing any rights under this contract, or marketing any goods and services provided by Kea Trailers New Zealand Limited to any other party.
3.2 The customer authorises Kea Trailers New Zealand Limited to disclose any information obtained to any person for the purposes set out in clause 3.1.
4. PRICE
4.1 For Dealers, all discounts are depicted on the dealer agreement and may vary from time to time. Recommended Retail Price lists will be supplied. All prices are subject to change, the customer will be notified by Kea Trailers New Zealand Limited of any change in prices. It is the customer’s responsibility to discard all previous lists, as each price list will supersede all older ones.
4.2 All products supplied by the seller are charged at the Seller’s Recommended Retail price. Discounts as shown on the invoice may only be deducted if the total amount due and any previous amounts due are paid on or before the 20th of the month after the date on the invoice(s) where the customer holds a credit account with Kea Trailers New Zealand Limited. Late payments will lose the discount.
4.3 Freight on all goods is extra and will be set at “Limited Carrier’s Risk”. Parts ordered with trailers and that can be packed inside do not incur an extra freight charge other than the freight charge of the trailer(s).
4.4 The customer shall be deemed to have accepted the goods unless the customer notifies Kea Trailers New Zealand Limited within 48 hours of delivery.
4.5 If the goods are not accepted according to clause 4.5 of this contract, the customer shall pay for the delivery of the returned goods, whereby the customer shall be entitled to a credit for the purchase price of any such goods.
4.5 of this contract, the customer shall pay for the delivery of the returned goods, whereby the customer shall be entitled to a credit for the purchase price of any such goods.
5. PAYMENT
5.1 Payment for goods shall be made:
5.1.1 In full prior to collection or despatch of the goods or upon completion of the work (“the date due”); or
5.1.2 Where the customer has an existing credit account with Kea Trailers New Zealand Limited or has arranged a credit account with Kea New Zealand Limited, the price shall be paid in full on or before the 20th day of the month following the date of the invoice.
5.2 Interest may be charged on any amount owing after the due date at the rate of 5% per month or part month.
5.3 Where a deposit is paid by the customer to Kea Trailers New Zealand Limited such deposit shall not be refundable for cancellation of this contract by the customer where such cancellation is not due to the fault of Kea Trailers New Zealand Limited.
5.4 Any expenses, disbursements and legal costs incurred by Kea Trailers New Zealand Limited in the enforcement of any rights contained in this contract shall be paid by the customer, including any reasonable solicitor’s fees or debt collection agency fees.
5.5 Receipt of any negotiable instrument shall not constitute payment until such negotiable instrument is paid in full in cleared funds.
6. QUOTATION
6.1 Where a quotation is given by Kea Trailers New Zealand Limited for the price of goods;
6.1.1 The quotation shall be valid for one month from the date of issue; and
6.1.2 The quotation shall be exclusive of Goods and Services Tax unless specifically stated to the contrary.
6.2 Where goods are required in addition to the quotation the customer agrees to pay for the additional cost of such goods.
6.3 Kea Trailers New Zealand Limited may withdraw the quotation at any time.
7. DELIVERY AND RISK
7.1 The goods remain at Kea Trailers New Zealand Limited’s risk until the delivery to the customer, but when the goods pass to the customer pursuant to clause 9.1 of this contract the goods are at the customer’s risk whether delivery has been made or not.
7.2 Delivery of goods shall be deemed completed when Kea Trailers New Zealand Limited gives possession of the goods for delivery to the customer, or possession of the goods is given to a common carrier, or other arrangement for the purposes of transmission to the customer.
7.3 The time agreed for delivery shall not be an essential term of this contract unless the customer gives written notice to Kea Trailers New Zealand Limited making time of the essence.
7.4 Where Kea Trailers New Zealand Limited delivers goods to the customer by instalments and the customer fails to deliver one or more instalments the customer shall not have the right to repudiate the contract but shall have the right to claim compensation as a severable breach.
7.5 If delivery of goods is delayed by reason of or as a result of any act omission, default of or at the request of the customer, Kea Trailers New Zealand Limited may require payment of expenses or additional costs incurred by Kea Trailers New Zealand Limited as a result of the delay.
8. AGENCY
8.1 The customer authorises Kea Trailers New Zealand Limited to contract either as principal or agent for the provision of any goods that form the matter of this contract.
8.2 Where Kea Trailers New Zealand Limited enters into a contract of the type referred to in clause 8.1, it shall be read with, and form part of this agreement and the customer agrees to pay any amounts due under that contract.
9. TITLE
9.1 If the goods are ascertained and in a deliverable state, title in the goods passes to the customer when the customer has made payment for all goods supplied by Kea Trailers New Zealand Limited.
9.2 Where the customer has not paid for any goods in the possession of the customer title in such goods shall remain with Kea Trailers New Zealand Limited and;
9.2.1 The goods shall be held by the customer as prior arrangement; and
9.2.2 If the goods are attached, fixed, or incorporated into any property of the customer, by way of any manufacturing or assembly process by the customer or any third party, title in the goods shall remain with Kea Trailers New Zealand Limited until the customer has made payment for all goods and where those goods are mixed with other property so as to be part of or a consultant of any new goods, title to these new goods shall be deemed to be assigned to Kea Trailers New Zealand Limited as security for the full satisfaction by the customer of the full amount owing between Kea Trailers New Zealand Limited and the customer.
9.3 Where Kea Trailers New Zealand Limited exercised its rights under the contract in respect of the resale, storage or repossession of the goods supplied (including legal costs as between solicitors and own client), the customer is to immediately indemnify Kea Trailers New Zealand Limited for all such costs.
10. LIABILITY
10.1 Except as otherwise provided by status Kea Trailers New Zealand Limited shall not be liable for:
10.1.1 Any loss or damage of any kind whatsoever whether suffered or incurred by the customer or another person whether such loss or damage arises directly or indirectly from goods or services, or advice provided by the seller to the customer and without limiting the generality of the foregoing of this clause Kea Trailers New Zealand Limited shall not be liable for any consequential loss or damage of any kind including without limitation any financial loss; and;
10.1.2 Except as provided in this contract Kea Trailers New Zealand Limited shall not be liable in contract, or otherwise for any loss, damage, or injury beyond the value of the goods provided by Kea Trailers New Zealand Limited, to the customer; and;
10.1.3 The customer shall indemnify Kea Trailers New Zealand Limited against all claims of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of Kea Trailers New Zealand Limited or otherwise brought by any person in connection with any matter, act, omission, or error by Kea Trailers New Zealand Limited, its agents or employees in connection with the goods.
10.1.4 Kea Trailers New Zealand Limited shall not be liable for any claim to which it would otherwise be liable unless particulars of such claim are notified to Kea Trailers New Zealand Limited in writing within three working days of delivery.
11. WARRANTY
11.1 No representation, condition, warranty, or premise expressed or implied by law or otherwise applies to goods except where goods are supplied pursuant to the Consumer Guarantees Act 1993 or except where expressly stated in this contract.
11.2 Kea Trailers New Zealand Limited does not provide any warranty that the goods are fit and suitable for the purpose for which these are required by the customer and shall not be liable if they are not.
11.3 Without limiting the generality of clause 11.1 here to goods provided by Kea Trailers New Zealand Limited are warranted to be free from defective workmanship and materials and should it be proven that the goods are defective due to faulty manufacture or failure under normal working conditions, within five years from date or purchase, Kea Trailers New Zealand Limited will replace or repair such defective goods, providing the defective goods are returned, freight paid, to Kea Trailers New Zealand Limited’s factory and Kea Trailers New Zealand Limited shall be under no liability under the warranty for any defect in goods.
11.3.1 Arising from inappropriate or unsuitable use; or
11.3.2 Arising from the premises where goods are stored becoming unsuitable for the proper functioning of the goods for any reason that is beyond the control of Kea Trailers New Zealand Limited; or
11.3.3 Arising from any contribution to malfunction by the customer; or
11.3.4 Arising from the attempting of any repairs by the customer or any third party; or
11.3.5 If, in Kea Trailers New Zealand Limited’s opinion, such defect or fault is due to incorrect installation and/or operation of the goods, or operation under abnormal or abusive conditions; or
11.3.6 If the customer has used the goods otherwise than in accordance with Kea Trailers New Zealand Limited’s or the relevant industry operational criteria or norms.
11.4 The customer shall notify Kea Trailers New Zealand Limited within seven days of any defect that ought to have been reasonably identified by the customer or any warranty pursuant to clause 11.3 shall be void.
11.5 Where there is a warranty provided in writing by Kea Trailers New Zealand Limited at the time of purchase of goods that warranty shall prevail over any warranty contained hereto and the warranty pursuant to clause 11.2 shall be specifically excluded.
11.6 If warranty repairs are to be made by the customer, he/she must first obtain approval from the Kea Trailers New Zealand Limited giving details of the damage, serial number of the unit and a quote of costs to Kea Trailers New Zealand Limited involved.
12. CANCELLATION
12.1 Without prejudice to any rights it may have pursuant to this contract or at law or in equity, Kea Trailers New Zealand Limited shall have the right by notice in writing to suspend or cancel in whole or in part any contract for the supply of goods to the customer if the customer fails to pay any money owing after the due date for payment or if the customer commits any act of bankruptcy as defined by Section 19 of the Insolvency Act 1967.
12.2 Any cancellation or suspension under clause 12.1 of this agreement shall not affect Kea Trailers New Zealand Limited’s claim for money due at the time of cancellation or suspension or for damages for any breach of any terms of the contract or the customer’s obligations to Kea Trailers New Zealand Limited under this contract.
13. EQUIPMENT
13.1 The customer shall not assign all or any of its rights or obligations under this contract without the written consent of Kea Trailers New Zealand Limited.
13.2 Kea Trailers New Zealand Limited shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.
13.3 Failure by Kea Trailers New Zealand Limited to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations Kea Trailers New Zealand Limited has under this contract.
13.4 The law of New Zealand shall apply to this contract except to the extent expressly negative or varied by the contract.
13.5 Where the terms of this contract are at a variance with the order or instruction from the customer, this contract shall prevail.
13.6 Any personal guarantee made by any third party shall not exclude the customer in any way whatsoever from the liabilities and obligations contained in this contract. The guarantors and buyer shall be jointly and severally liable under the terms and conditions of this contract.
13.7 The customer shall notify Kea Trailers New Zealand Limited in writing within seven days from the date of provision of goods of any dispute arising under this contract.
13.8 If any provision of this contract shall be invalid, void, or illegal or unenforceable the validity existence, legally and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
13.9 These terms and conditions together with any additional terms and conditions contained in the quotation, invoice, order confirmation or other similar document issued by Kea Trailers New Zealand Limited (“other documents”) shall be the terms of the contract and hereto additional terms and conditions shall be ready with and form part of this contract.