Terms and Conditions of Sale
“Documents” mean and include any invoice, quotation, order, document, statement issued or account application form and/or accepted by Syntech.
“Goods” means the goods sold or supplied to the Purchaser by Syntech..
"Guarantor" means the person who unconditionally and irrevocably guarantees to Syntech the due and punctual performance by the Purchaser of its obligations under these Terms and Conditions, and the payment by the Purchaser of any amount owing to Syntech, as set out in the attached account application form.
“Intellectual Property” means Syntech’s business names, trade names, trademarks, product names, copyright, patents, designs, industrial processes, trade secrets, know how, ideas, concepts, technical information, writings, diagrams, drawings, and all other intellectual property rights whatsoever owned, developed, created or used by Syntech and any development or modifications in or to such intellectual property rights.
"Services" means any services provided to the Purchaser by Syntech from time to time.
“Syntech” means Syntech Distributors Limited.
“Purchaser” means the person or entity to or for whom the Goods are to be supplied by Syntech, or for whom the Services are to be provided to by Syntech, and as set out in the attached account application form.
“Purchase Price” means the listed price for the Goods or Services charged by Syntech at the date of delivery or such other price as may be agreed by Syntech and the Purchaser prior to delivery of the Goods or provision of the Services.
“Terms and Conditions” means these trading terms and conditions as amended from time to time by Syntech and notified to the Purchaser.
1.1 All orders for Goods or Services are subject to acceptance by Syntech in writing or by Syntech supplying Goods or providing Services in accordance with the order. These Terms and Conditions and any other Document accepted by Syntech describing the Goods or Services shall form the agreement between Syntech and the Purchaser in relation to the supply of Goods or the provision of Services.
1.2 Where a quotation is given by Syntech, such quotation is open for acceptance for a period of 30 days from the date of the quotation unless withdrawn by Syntech prior to this date.
1.3 Any special conditions specified by Syntech in any Document will prevail over these Terms and Conditions to the extent of any inconsistency.
2. Sale by Description and/or Sample – Publicity Materials
2.1 To the extent permitted by law:
(a) If it is a condition of the agreement between Syntech and the Purchaser that Goods shall correspond with a description, then such description must be specified in a Document and agreed by Syntech;
(b) If the sale is by sample as set forth in a Document, as well as by description, the Purchaser shall accept the Goods if more than half of the order corresponds with the sample but not the description;
(c) All leaflets, sketches, illustrations or catalogue materials supplied by Syntech are to be used as a guide only. Syntech reserves the right to change any design or construction details or other specifications at any time.
3.1 The Purchase Price is based on current ruling prices of labour and overheads, steel and other materials and consumables, freight exchange, insurances, duty, landing charges, and sub-contractor’s prices. Syntech reserves the right to modify the quoted prices, in accordance with any variations in the above.
3.2 All prices quoted are exclusive of Goods & Services Tax (GST).
4.1 Syntech may require the Purchaser to pay a deposit equal to 30% of the Purchase Price for the Goods or Services, or an amount as otherwise advised by Syntech, upon Syntech’s acceptance of an order pursuant to clause 1. The Purchaser must then pay the balance of the Purchase Price for those Goods or Services as specified in clause 5 below.
5.1 Unless otherwise agreed between Syntech and the Purchaser in writing, payment for Goods or Services is due and payable (in full) on the due date as stated and shown on the relevant Document or if no due date is specified on the Document then payment shall be made within 40 days of delivery of the Goods or provision of the Services
5.2 The Purchaser will pay all Syntech's costs and expenses (including legal costs and expenses incurred on a solicitor/own client basis) incurred by Syntech in the enforcement of its rights and remedies under these Terms and Conditions, any Document and at law, upon demand being made by Syntech.
5.3 Syntech may, in the event any amount owing to Syntech is not received in full within 7 days of the due date, charge interest at Syntech’s current bank overdraft rate plus a margin of 2% on any amount outstanding, calculated on a daily basis from the due date for payment until the date full payment is received by Syntech.
5.4 Unless specifically agreed between Syntech and the Purchaser, all quoted prices are on a basis of delivery.
5.5 In the event of payment in full not being received within 7 days of the due date of payment, all of the costs and expenses of collection of the payment, including but not limited to legal costs incurred by Syntech, will be payable by the Purchaser, in addition to the amount of the payment due and any interest accrued thereon.
6.1 Risk in the Goods passes on delivery to the Purchaser as set out in clause 8.
6.2 Insurance will not be affected by Syntech on Goods dispatched from Syntech’s premises, unless Syntech receives and accepts written instructions to insure.
7.1 Should Syntech not receive forwarding instructions sufficient to enable Syntech to dispatch the Goods on the Purchaser’s behalf, within a period of 7 days after the date of notification that they are ready for dispatch; the Purchaser shall take delivery or arrange for storage. If the Purchaser does not take delivery or arrange for storage, Syntech shall be entitled to arrange storage either at Syntech’s works or elsewhere on the Purchaser’s behalf, and all charges for storage, insurance, demurrage, handling and any other loss, costs, claims, damages, expenses (including all legal costs and expenses incurred on a solicitor/own client basis) incurred by Syntech, or any of its employees, agents or subcontractors, shall be payable by the Purchaser.
- Any delivery period referred to in the Documents is subject to confirmation by Syntech on receipt of the Purchaser’s order, and will commence from the date on which Syntech has both the Purchaser’s order and all particulars, required to enable Syntech to proceed with manufacture or supply of the Goods. Times quoted for delivery are estimates only and Syntech is not liable for delay in delivery of the Goods. The Purchaser is not relieved of its obligation to pay for the Goods due to delay in delivery. The delivery date will be subject to revision should there be delays caused by circumstances beyond Syntech’s control.
- Unless otherwise agreed, delivery shall be deemed to have taken place:
- if the Goods are to be collected from Syntech’s premises, then:
- just prior to the Goods being loaded onto the carrier organised by the Purchaser; or
- at the time and date when the Goods are scheduled to be collected by the Purchaser,
- whichever occurs first; or
- if the Goods are to be delivered to the Purchaser’s nominated address then just prior to the Goods being unloaded from the carrier at the nominated address in accordance with the order, which order is delivered to the Purchaser at the Purchaser’s expense.
- Syntech reserves the right to deliver in instalments, with each installment to be separately invoiced for payment upon Syntech’s stated terms, and paid accordingly, notwithstanding late delivery or non-delivery of any other installment. Failure of the Purchaser to pay for any one or more of the installments of the Goods on the due date, shall entitle Syntech (at the sole option of Syntech), without notice, to suspend further deliveries of the Goods pending payment by the Purchaser and/or treat this agreement as repudiated by the Purchaser.
9. Order Cancellation
9.1 Once an order has been placed, it may not be cancelled for any cause whatsoever without Syntech’s written consent. Upon placing the order, the Purchaser will be deemed to have invited Syntech to supply or arrange for the supply of the Goods, or provide or arrange for the provision of Services, and to have agreed that the Purchaser’s order will be irrevocable, pending acceptance or rejection by Syntech within a reasonable time.
10. Retention of Title
10.1 Subject to any applicable and relevant law, property in and title to the Goods remains with Syntech until payment in full for the Goods and all sums due and owing by the Purchaser to Syntech on any account has been made.
10.2 The Purchaser, upon receipt of the Goods, holds the Goods as bailee for Syntech until the Purchaser has paid all amounts owing by the Purchaser to Syntech. Until such time, the Purchaser will store and identify the Goods in such a way that the Goods are clearly identified as Syntech’s property.
10.3 Prior to property in the Goods passing to the Purchaser, the Purchaser will be entitled, as Syntech’s agent, to sell the Goods to a third party in its ordinary course of business, provided that the Purchaser will be fully accountable to Syntech for all proceeds derived from any such sale, and will deposit the proceeds from any such sale, so as to clearly identify them as Syntech’s property.
10.4 The authority to sell the Goods under clause 10.3 is immediately revoked without notice to the Purchaser if the Purchaser:
(a) breaches any provision of these Terms and Conditions;
(b) enters into any composition or arrangement with the Purchaser’s creditors;
(c) has a Receiver appointed in respect of all or any substantial part of the Purchaser’s assets, or if the Purchaser is placed in statutory management, liquidation or voluntary administration;
(d) (being a company) is deregistered;
(e) (being an individual), commits any act of bankruptcy or is declared bankrupt; and
(f) (being a partnership) is dissolved.
10.5 Prior to property in the Goods passing to the Purchaser:
(a) The Purchaser will not be entitled to intermingle the Goods with any other objects, or otherwise deal with the Goods so that they may become a constituent part of any other object, without Syntech’s prior written consent. Such consent, if granted, will only be deemed to be granted upon the basis that, should the Purchaser intermingle or deal with the Goods in a way that they become a constituent part of any other object, the Purchaser will be deemed to do so as Syntech’s agent and property in all such other objects will vest in Syntech as principal; and
(b) Syntech appoints the Purchaser as Syntech’s agent for the sale of any such new objects. The Purchaser will be fully accountable to Syntech for all proceeds derived on the sale of such new objects and will deposit the proceeds from such sales, so as to clearly identify them as Syntech’s property, and will hold such proceeds in trust for Syntech.
10.6 Until such time as ownership of the Goods passes from Syntech to the Purchaser, Syntech may give notice in writing to the Purchaser to return the Goods or any of them to Syntech. Upon such notice the rights of the Purchaser to obtain ownership or any other interest in the Goods shall cease. If the Purchaser fails to return the Goods to Syntech then Syntech or Syntech’s agent may, without liability, enter upon and into buildings and premises or otherwise where the Goods are stored and take possession of the Goods without liability for trespass or any resulting loss or damage. The Purchaser indemnifies Syntech against any loss, costs, claims, damage, expenses (including all legal costs and expenses incurred on a solicitor/own client basis) suffered by Syntech as a result of Syntech repossessing the Goods in accordance with this clause.
11. Security interest
11.1 The Purchaser grants Syntech a security in all Goods from time to time supplied by Syntech to the Purchaser, and all the Purchaser's present and future rights in relation to those Goods and all proceeds, as security for the payment of all amounts the Purchaser may from time to time owe Syntech and the performance of the Purchaser's obligations to Syntech (Security Interest). Syntech may register a financing statement to protect its interest.
11.2 The Purchaser will:
(a) sign all documents and provide all information Syntech requires to register a financing statement or financing change statement on the Personal Property Securities Register (PPSR);
(b) indemnify, and upon demand reimburse, Syntech for all expenses incurred in registering a financing statement or financing change statement on the PPSR, or releasing any goods charged; and
(c) give Syntech at least 20 days prior written notice if it wishes to change its name.
11.3 The Purchaser will protect Syntech's interests in the Goods. In particular, the Purchaser will:
(a) put in place appropriate security precautions to protect the Goods from loss, damage and destruction including arranging suitable insurance;
(b) not permit any other security interest to attach to the Goods; and
(c) not change the physical appearance of the Goods.
11.4 The Purchaser agrees:
(a) that nothing in sections 114(1)(a), 133 and 134 of the Personal Property Securities Act 1999 (PPSA) shall apply to these terms;
(b) to waive all the Purchaser's rights under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA;
(c) to waive the Purchaser's rights to receive a copy of the verification statement confirming registration.
12. Damage or Loss in Transit
12.1 To the extent permitted by law, no claim for damage in transit, or shortage in delivery, will be entertained by Syntech unless a separate notice in writing is given to the carrier concerned and to Syntech by the Purchaser immediately upon the Purchaser becoming aware of the circumstances giving rise to the claim, followed by a detailed and complete claim in writing, within seven days of delivery.
13. Force Majeure
13.1 Should Syntech be delayed in, or prevented from making delivery, owing to any cause whatsoever beyond Syntech’s control, Syntech shall be at liberty to cancel or suspend the order without incurring any liability for any loss or damage resulting hereafter.
14. Other Agreements
14.1 Any usage of trade, special agreement or course of dealing between the parties at variance with these Terms and Conditions will have no effect unless provided in writing and approved by Syntech.
15. Syntech's Warranty
15.1 Subject to the following clause 15, Syntech warrants the Goods supplied by Syntech against faulty design, workmanship or materials resulting in defects to Goods for a period of twelve months from the date of their delivery (Warranty Period).
15.2 Under the terms of this warranty, and subject to evaluation and approval of the warranty claim by Syntech, Syntech may elect at its cost and at its discretion to repair or replace the Goods during the Warranty Period subject to applicable consumer laws. Repaired or replaced Goods have the same Warranty Period based on the original date of supply by Syntech.
15.3 To make a warranty claim under this warranty, the Purchaser must:
(a) provide written notice to Syntech of any defect with full particulars thereof within 7 days of the defect becoming apparent and obtaining any relevant details required by Syntech for making the claim;
(b) send to Syntech original proof of purchase and reasonable evidence of the original date of supply and a written description of the fault;
(c) send the Goods to Syntech in its original packaging or packed in a manner approved by Syntech to the address below, and subject to the applicable consumer laws, pay for all packaging, freight and insurance costs for transit of the Goods to Syntech:
Syntech Distributors Ltd
12B Saunders Place
NEW ZEALAND 1746
Phone: +64 9 820 2121
15.4 This warranty does not cover:
(a) components that may need replacement or repair due to normal fair wear and tear or lack of maintenance upkeep;
(b) damage caused by accident, misuse, negligence, abuse or fire;
(c) overloading or transport damage;
(d) Goods that have not been returned to Syntech in its original packaging or in a manner approved by Syntech within the period specified in this clause 15;
(e) unauthorised alteration, modification or substitution of any parts of the Goods, installation or use of the Goods not in accordance with Syntech’s instructions;
(f) malfunction due to faulty installation or operation;
(g) Goods that have their serial number or model number removed or defaced;
(h) Goods that have been used for a purpose other than for what was reasonably intended for the Goods
(i) fault in parts that have been manufactured by someone other than Syntech
15.5 This warranty does not apply unless and until the Goods have been paid for in full by the Purchaser.
16. Other Warranties
16.1 The Purchaser acknowledges it has entered into these Terms and Conditions for business purposes and that the provisions of the Consumer Guarantees Act 1993 are expressly excluded.
16.2 All warranties, guarantees or conditions, express or implied (including any implied warranties under the Sale of Goods Act 1908) that may be excluded by law are excluded to the maximum extent permitted by law.
16.3 Notwithstanding the above, the liability of Syntech under this warranty and in these Terms and Conditions is limited, to the extent permitted by law and at the option of Syntech to:
(a) in the case of Goods,
(i) replacing the Goods or the supply of equivalent Goods;
(ii)the repair of the Goods;
(iii)the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
(iv)the payment of the cost of having the Goods repaired;
(b) in the case of Services:
(i) supplying the Services again; or
(ii) paying the cost of having the Services supplied again.
16.4 It shall be the Purchaser’s responsibility to check the quality of delivered Goods before their incorporation into any other work. If the quality is not in accordance with the quality contracted for and if the Purchaser has reason to believe the quality of the Goods is such as to give rise to difficulties in use, processing or incorporation as aforesaid, then the Purchaser shall not allow such incorporation or use to commence unless the Purchaser has received permission from an approved representative of Syntech in writing or by telecommunications.
16.5 The Purchaser must not misrepresent to anyone the specifications, performance or purpose of the Goods or Services and must not make or give any warranties, guarantees or representations in relation to the Goods or Services whatsoever without Syntech’s prior written consent.
17.Limitation of liability
17.1 Notwithstanding any other provision of these Terms and Conditions and to the maximum extent permitted by law, Syntech's liability arising out of, or in connection with, these Terms and Conditions in respect of any claim whether under contract, tort (for negligence or otherwise) or on any other basis, is limited to an amount equivalent to the price payable by the Purchaser for the Goods or Services provided to the Purchaser.
17.2 Syntech is not liable for any physical or financial injury, loss or damage or consequential loss or damage, of any kind arising out of any defect in the Goods, or the supply, installation or use of the Goods, or arising out of Syntech's negligence, or in any way whatsoever to the extent permitted by law.
18.1 To the full extent permitted by law, Purchaser will indemnify and keep indemnified Syntech and its employees, agents and contractors, and holds all of them harmless from and against:
(a) all loss, costs, claims, damages, expenses (including all legal costs and expenses incurred on a solicitor/own client basis) incurred by Syntech, or any of its employees, agents or subcontractors; and
(b) all actions, suits, claims, demands and any other proceedings whatsoever made or brought against Syntech or any of its employees, agents or contractors, caused by any breach of these Terms and Conditions, or by any representation made, or any, act or omission, or negligence committed, by the Purchaser or by any of the Purchaser's employees, agents, contractors or customers.
19. Intellectual Property
19.1 The Purchaser acknowledges that all Intellectual Property is, and at all times remains, the exclusive property of Syntech. The Purchaser will not, and will not permit anyone else to, use or copy the Intellectual Property, unless Syntech expressly agrees in writing.
19.2 The Purchaser shall not alter, remove, or in any way tamper with any of the trade or other marks or numbers of Syntech attached to or placed upon any Goods.
20.1 Without prejudice to any of Syntech's rights or remedies, Syntech may terminate these Terms and Conditions:
(a)by giving the Purchaser one month's prior written notice; or
(b)immediately if the Purchaser:
(i)fails to pay any amount owing to Syntech under these Terms and Conditions;
(ii)breaches these Terms and Conditions, and such breach is not capable of remedy, or if capable of remedy, is not remedied to Syntech's satisfaction within 10 days after Syntech notifies the Purchaser of such breach; or
(iii)an event occurs which in Syntech's sole opinion effects or may affect the Purchaser's ability to meet its obligations under these Terms and Conditions, including the voluntary administration, receivership or liquidation of the Purchaser.
20.2 Upon termination of these Terms and Conditions, the Purchaser must immediately pay all amounts owing to Syntech, and Syntech may repossess any Goods without notice. Syntech may retain all or part of any deposit paid by the Purchaser to cover its reasonable costs and/or as compensation for the early termination of these Terms and Conditions.
21.1 In consideration of Syntech agreeing to provide Goods and Services to the Purchaser at each Guarantor's request, each Guarantor jointly and severally:
(a) guarantees the due, punctual and full performance by the Purchaser of its obligations and warranties under these Terms and Conditions and at law; and
(b) indemnifies Syntech from and against any action, suit, claim demand, cost or expense (including all legal costs and expenses incurred on a solicitor/own client basis) arising directly or indirectly as a result of any act or omission by the Purchaser in breach of any obligation or warranty under these Terms and Conditions or any law, or as a result of any act, omission, or negligence committed, by the Purchaser or by any of the Purchaser's employees, agents, contractors or customers.
21.2 The liability of each Guarantor under these Terms and Conditions is a principal obligation of each Guarantor and shall not be relieved or in any way affected in a manner prejudicial to Syntech by any granting of time, waiver of forbearance to sue by Syntech. The guarantee provided by each Guarantor is a continuing guarantee and shall remain in full force and effect until Syntech executes a written release.
22.1 The Purchaser and each Guarantor authorises Syntech to collect and disclose information about the Purchaser and the Guarantors (including credit information) to or from any person (including accountants, credit reporters, debt collection agencies, solicitors or other suppliers) for the purposes of:
(a)considering whether to provide Goods and Services to the Purchaser;
(b) making credit decisions about the Purchaser or the Guarantor including considering the Purchaser's credit application, monitoring the Purchaser's credit account, and from time to time reviewing whether to continue providing credit; and
(c) recovering any amount owing by the Purchaser or any Guarantor, or taking enforcement action against any of them.
22.2The Purchaser acknowledges that information given to credit reporting agencies may be disclosed by them to other persons to help those other persons decide whether to provide credit or other goods or services to the Purchaser or each Guarantor.
23.1 These Terms and Conditions are governed by New Zealand law, and the parties submit to the jurisdiction of the New Zealand Courts.
23.2 These Terms and Conditions contain all of the terms and conditions of the contract between the parties and may only be varied by agreement in writing between the parties.
23.3 Any conditions found to be void, unenforceable or illegal may, to that extent are severed from these Terms and Conditions.
23.4 No waiver of any of these Terms and Conditions or failure to exercise a right or remedy by Syntech will be considered to imply or constitute a further waiver by Syntech of the same or any other term, condition, right or remedy.
23.5 The Purchaser must keep confidential all information including these Terms and Conditions, the price of the supply of the Goods or the provision of Services, and any information which Syntech may reasonably consider is confidential, unless the Purchaser is required by law to disclose such information or the information has become public information or with prior written consent of Syntech.
23.6 The Purchaser warrants it has had the opportunity to obtain independent legal advice about its obligations under these Terms and Conditions, and confirms the Terms and Conditions are fair and reasonable.