Auckland Bearings

INTRODUCTION
1. These terms and conditions ( Terms ) will be incorporated into each contract entered into between the Customer and Auckland Bearing Distributors Limited ( ABD ) for the supply of Goods, except to the extent expressly varied by signed agreement in writing between them (and notwithstanding any verbal indication to the contrary by any person acting or purporting to act on behalf of ABD).
2. A binding contract is created between the Customer and ABD when the Customer places an Order which is then accepted by ABD within the meaning of these Terms. Each accepted Order will constitute a separate contract.
DEFINITIONS
1. In these Terms, the following capitalised words have the following meanings:
  
  Customer means the person purchasing Goods from ABD.
  
  Delivery means delivery of Goods to the Customer within the meaning of clause 4.2 of these Terms.
  
  Delivery Point means the address for delivery to the Customer of Goods to be supplied by ABD to the Customer pursuant to any Order, expressly approved in writing by ABD (whether in a Quote or otherwise) for the Order.
  
  Due Date in respect of the Price of Goods and any other amounts payable by the Customer to ABD in connection with such Goods, means, unless agreed otherwise by ABD in writing with the Customer, the 20^th day of the month following the date of the invoice for the relevant Goods.
  
  Event of Default in respect of a Customer means an event where:
  1. the Customer fails to comply with these Terms or any other contract with ABD; or
  2. the Customer commits an act of bankruptcy; or
  3. the Customer enters into any composition or arrangement with its creditors; or
  4. if the Customer is a company:
    1. the Customer does anything which would make it liable to be put into liquidation; or
    2. a resolution is passed or an application is made for the liquidation of the Customer; or
    3. a receiver, administrator or statutory or official manager is appointed over all or any of the Customer’s assets or the Customer, its board or shareholders, is considering appointing an administrator or liquidator; or
  5. anything analogous to or having similar effect to any of the events listed above arises in respect of the Customer.
  Goods means all goods and all Services ordered by the Customer and supplied by ABD under these Terms (as detailed in each invoice issued to the Customer by ABD) and includes any Services forming part of the supply of any goods.
  
  GST means goods and services tax chargeable in accordance with the Goods and Services Tax Act 1985.
  
  Online Store means ABD’s online store located at www.abdgroup.co.nz (or such other replacement website designated by ABD from time to time).
  
  Order means an order for Goods made by the Customer in accordance with clauses 3.2 and 3.3 of these Terms.
  
  PPSA means the Personal Property Securities Act 1999.
  
  Price means the purchase price (exclusive of GST) for Goods (as may be varied in accordance with these Terms) and any other costs payable by the Customer to ABD under these Terms in respect of the supply or delivery of the Goods to the Customer.
  
  Quote means a quotation or pricing offer given by ABD to the Customer in writing in relation to the supply of Goods to the Customer by ABD.
  
  Services means any services provided or agreed to be provided by ABD to the Customer whether or not in relation to the supply of goods (including, but not limited to, custom drive designs and other designs, technical design advice, technical back-up services, advice and recommendations).
  
  Terms means these terms and conditions of trade, as amended from time to time in accordance with their terms.
2. References in these Terms to any enactment include a reference to any such enactment as from time to time amended, re-enacted or substituted or any statutory instruments, regulations and orders issued under such legislation.

SUPPLY OF GOODS

These Terms govern the supply of Goods to the Customer. The Customer is deemed to have accepted these Terms when it places an Order for Goods from ABD.
The Customer may place an Order by sending the Order to ABD by any of the following methods:
1. Telephone: +64 9 444 6566;
2. Email: sales@abdgroup.co.nz;
3. Facsimile: +64 9 444 4963;
4. Online Store: www.abdgroup.co.nz; or
5. in person.
An Order for Goods must specify details including:
1. an Order number;
2. a description of the Goods required;
3. the quantity of Goods required;
4. the requested date of delivery;
5. the Delivery Point; and
6. the means of delivery.
An Order for Goods will only be deemed to have been accepted by ABD if accepted in writing by ABD or if Delivery of the Goods is made to the Customer. The Customer may not cancel an Order without the written agreement of ABD. Where a Customer cancels an Order and has paid a deposit for the Goods to which the Order relates, the deposit will, unless otherwise agreed in writing by ABD, be forfeited to ABD.
ABD will use reasonable endeavours to despatch the Goods to the Customer within the delivery times requested by the Customer for Goods (but, to avoid doubt, ABD will not be liable for any delay due to stock levels or otherwise). ABD may deliver the Goods by instalments. Each instalment will be treated as a separate contract subject to these Terms. Failure to fully deliver the Goods in any Order will not entitle the Customer to cancel any contract relating to the Goods.
ABD may for any reason (including, without limitation, an inability to source goods from third parties) cancel any Order at any time prior to Delivery by written notice to the Customer. On giving such notice ABD shall promptly repay the Customer any sums paid in respect of the Price. ABD shall not be liable for any loss or damage whatsoever arising from any such cancellation of an Order.
All freight, packaging and other delivery charges due in connection with Delivery of the Goods to the Customer are payable by the Customer.
The Customer may only reject Goods which are unsuitable due to damage or defect (which must have occurred prior to Delivery of the Goods) if:
1. the Customer notifies ABD in writing within 7 days of Delivery of the Goods; and
2. ABD can inspect the Goods or the Customer provides evidence of the damage or defect (and that it occurred prior to Delivery) which is satisfactory to ABD.
The Customer may only demand a refund or re-performance of Services due to the Services being inadequate if:
1. the Customer notifies ABD in writing within 7 days of provision of the Services; and
2. the Customer provides evidence of the inadequacy of the Services which is satisfactory to ABD.
Goods that ABD has agreed are defective or damaged will, at ABD’s discretion, be repaired or replaced, or ABD may refund the price paid by the Customer for such Goods.
Services that ABD has agreed are inadequate will, at ABD’s discretion, be re-performed, or ABD may refund the price paid by the Customer for such Services.
ABD may, in its complete discretion, agree to the return of Goods (or re-perform the Services). Any request for the return of Goods (or re-performance of Services) must be made by the Customer calling ABD on +64 9 444 6566 (or such other number as ABD specifies for this purpose from time to time) quoting:
1. the number of the invoice(s) relating to the relevant Goods;
2. details of the Goods proposed to be returned (or Services to be re-performed); and
3. the reason(s) for the proposed return (or re-performance of Services).

If the return of the Goods is accepted by ABD the Customer must pay any costs associated with returning the Goods to ABD and must provide with the Goods returned a copy of the invoice that accompanied the Goods when they were Delivered to the Customer. All returned Goods must be in new, unused condition and must be returned to one of the following addresses:

ABD Group - Head Office
11 Saturn Place
Rosedale
Auckland 0632

ACL New Zealand
73 Lansford Cres
Avondale
Auckland 0600

ABD Group - Wiri
13A Vogler Drive
Wiri
Auckland 2104

ABD Group – Hamilton
24 Devon Road
Frankton
Hamilton 3204

ABD Group – New Plymouth
140 Molesworth Street
New Plymouth 4312

ABD Group – Whanganui
21 Wilson Street
Whanganui 4500

ABD Group – Christchurch
7 Lunns Road
Middleton
Christchurch 8024

ABD Group – Tauranga
70B Portside Drive
Mount Manganui
Tauranga 3116

No credit will be issued for returns of Goods except those returns made strictly in accordance with these Terms. ABD reserves the right to charge the Customer a return fee in respect of any Goods returned.

TITLE AND RISK
1. Property and title in Goods supplied to the Customer remains with ABD and does not pass to the Customer until the Customer pays in full the Price of the Goods and all other amounts payable by the Customer in respect of the supply of those Goods under these Terms. Notwithstanding that title has not passed, all risk in the Goods passes to the Customer on Delivery.
2. Delivery of Goods to the Customer will constitute both delivery to, and acceptance by, the Customer of the Goods and will be deemed to have occurred upon the earlier of delivery of the Goods to the Delivery Point or delivery of the Goods into the control of the Customer or any agent of the Customer (including any carrier for the Customer).
PRICE AND PAYMENT
1. A Quote is valid for such period as may be specified in the Quote or, if none is specified, for a period of 30 days:
  1. from the date of the Quote; or
  2. if it is not dated, from the date of issue of the Quote by ABD.
2. ABD reserves the right to alter any Price previously specified (in a Quote or on the Online Store or otherwise) by ABD for Goods by written notice to the Customer and such alteration will be effective from the date of such notice and will apply to all Orders made for the relevant Goods which are accepted by ABD on or after that date.
3. The Price for Goods the subject of a Quote or an Order will be increased by:
  1. the amount of any GST and any other taxes and duties payable in connection with the Goods; and
  2. the amount of any increase in the cost to ABD (between the date of acceptance by ABD of the Quote and/or the Order and the date of Delivery of the Goods) of procuring, supplying, producing and/or delivering the Goods (where such costs include, without limitation, the price payable by ABD to manufacturers or suppliers of the Goods, currency fluctuations, freight, insurance, delivery and demurrage costs).
4. The Customer must pay the Price for Goods (and any other amounts payable by the Customer under these Terms including in relation to delivery of the Goods) by not later than the Due Date by direct credit into ABD’s bank account (as notified in writing by ABD to the Customer from time to time) or by such other payment method as may be specified by ABD for payment by the Customer.
5. Time for payment of ABD’s invoices by the Customer will be of the essence. Any amount not paid by the Due Date will incur interest of 2% per month calculated daily on the amount owing from the Due Date until payment is received in full (both before and after any judgment obtained). The Customer must also pay upon demand such additional amounts as ABD requires to meet the costs of debt collection (including full solicitor/client costs and other collection costs). This clause is intended to be for the benefit of, and enforceable by, any debt collection agent of ABD under Subpart 1 (Contractual privity) of Part 2 of the Contract and Commercial Law Act 2017.
6. The Customer may not withhold payment or make any deductions from or set off any amount against any amount owing by the Customer under these Terms or otherwise without ABD’s prior written consent. ABD may (without prior notice to the Customer) apply all or part of any credit balance of the Customer with ABD towards satisfaction of any amount owing by the Customer to ABD.
7. Any dispute by the Customer relating to an invoice issued by ABD for Goods supplied must be received in writing not later than 10 days after the date of invoice.
CREDIT LIMITS AND DEFAULT
1. ABD may impose a credit limit on the Customer, and alter the credit limit without notice and without releasing the Customer or any guarantor of the Customer’s obligations under these Terms from any liability whatsoever. Where the credit limit is exceeded, ABD may refuse to supply Goods to the Customer. If ABD at any time considers the credit of the Customer to be unsatisfactory, it may require security for payment and may suspend performance of its obligations under these Terms until such credit is provided.
2. If an Event of Default occurs in respect of the Customer (and without prejudice to any of ABD’s other rights and remedies):
  1. ABD may suspend or terminate any contract with the Customer pursuant to these Terms; and
  2. any amounts payable by the Customer will immediately become due and payable notwithstanding the Due Date may not yet have arisen; and
  3. ABD is entitled to recover from the Customer all costs that ABD may incur in attempting to collect the amount owing (including full solicitor/client costs) and any other moneys owing by the Customer to ABD from time to time, whether in relation to any contract with ABD under these Terms or on any other account whatsoever.
PERSONAL PROPERTY SECURITIES ACT
1. The Customer hereby grants to ABD a security interest under the PPSA in all Goods ABD supplies to the Customer (and the proceeds of sale of Goods so supplied) (Security Interest) to secure the obligations of the Customer to pay ABD all amounts payable by the Customer for Goods and the performance by the Customer of all its other obligations to ABD under these Terms or otherwise. The Security Interest will continue until all amounts owing by the Customer to ABD in respect of any Goods supplied or on any other account have been paid in full. The Customer must not create or allow to exist or be created a security interest over the Goods other than the Security Interest in favour of ABD.
2. ABD may allocate all moneys received from the Customer in any manner it determines including any manner required to preserve any Security Interest in the Goods. While property in or title to the Goods remains with ABD, ABD retains the right to enter the premises or land where the Goods are held or stored and remove them, as agent for the Customer, without being liable or responsible for any damage caused in doing so.
3. The Customer must, upon request, promptly give ABD all assistance and information (which the Customer warrants is complete, accurate and up-to-date in all respects) as is necessary to register a financing statement and to meet all other requirements under the PPSA to ensure that the Security Interest evidenced by these Terms constitutes a first ranking “perfected security interest” (as that term is defined in the PPSA). The Customer further agrees not to change its name without notifying ABD in writing not less than 15 days prior to doing so.
4. The Customer waives the right to receive a copy of the verification statement confirming registration of a financing statement or financing change statement relating to any Goods. The Customer agrees that nothing in sections 114(1)(a), 116, 120(2), 133 and 134 of the PPSA will apply to the security agreement constituted by these Terms, or any Security Interest in the Goods, and waives any rights it may have under sections 121, 125, 126, 127, 129 and 131 of the PPSA.
LIMITATION OF LIABILITY
1. To the maximum extent permitted by law:
  1. in relation to any Goods supplied by ABD to the Customer or otherwise in connection with these Terms, ABD has no liability whatsoever to the Customer or any other person for any direct or indirect, consequential or special loss, damage or cost (including loss of profits, loss of revenue or any other economic loss) however it arises (including as a result of misrepresentation, intentional acts or negligence by ABD or any of its employees, agents or suppliers and including in connection with any Goods supplied by ABD based on designs provided, or commissioned from ABD, by a Customer); and
  2. all representations, warranties or conditions, whether express or implied (including by trade, custom, statute or otherwise at law and including as to fitness or suitability for any purpose, merchantability, correspondence with description or sample or otherwise), in relation to the Goods or the supply of any of them by ABD are hereby expressly excluded, and the Customer confirms that it has not relied on any such representations, warranties or conditions and that it has ordered the Goods solely in reliance on its own judgement.
2. Without limiting clause 8.1, and to the extent that the Customer is “in trade” within the meaning of the Fair Trading Act 1986 (FTA) and the Consumer Guarantees Act 1993 (CGA), as applicable, the Customer and ABD agree to exclude liability under sections 9, 12A and 13 of the FTA and, to the maximum extent permitted by law, agree to contract out of the provisions of the CGA, on the basis that they are both “in trade”, the Goods the subject of these Terms are being supplied and acquired “in trade” and that it is fair and reasonable for them to do so.
3. If for any reason ABD cannot rely on the exclusions of liability in this clause 8, and is otherwise liable to the Customer or any other person, whether in contract (including in relation to misrepresentation), tort or otherwise, the maximum potential liability of ABD for any loss, cost, expense, injury, damage or other liability whatsoever (subject only to the CGA, if and to the extent it is applicable) will not exceed an amount equal to the Price paid by the Customer to ABD for the Goods in relation to which (or the delivery or non-delivery of which) the liability arises.
4. Where the Customer acquires Goods for the purpose of resale to its own customers, the Customer will, to the maximum extent permitted by law, exclude the application of the CGA from all contracts with its own customers and will procure that the Customer’s customers also exclude, to the maximum extent permitted by law, the application of the CGA from their customer contracts at each stage of the supply chain. The Customer indemnifies ABD against any failure by it or its customers to contract out of the CGA to the maximum extent permitted by law.
5. To avoid doubt and without limiting the rest of this clause 8., Customers are responsible for independently verifying that any Goods supplied by ABD based on a design provided, or commissioned from ABD, by a Customer is suitable for its intended purpose and, where applicable, compatible with other mechanical components, whether such other components are designed and/ or supplied by ABD or not.
GENERAL
1. Where ABD is unable, by reason of any event beyond its control (Force Majeure Event), to perform or carry out any obligation under these Terms that obligation is suspended so far as it is affected by the Force Majeure Event during its continuance. ABD will have no obligation to supply Goods to the Customer where the Customer is in default in respect of any supply of Goods by ABD or otherwise under these Terms.
2. If there is any inconsistency between these Terms and an Order submitted by the Customer (whether in writing, verbally or by any other method including via the Online Store) or any other arrangement between the parties, these Terms prevail unless otherwise expressly agreed in writing by the parties.
3. ABD will not be deemed to have waived any right under these Terms unless such waiver is in writing and signed by ABD. Any such waiver by ABD of a breach of any provision of these Terms will not constitute a waiver of any subsequent or continuing breach of such provision or of the breach of any other provision of these Terms by the Customer.
4. ABD reserves the right to review and amend any of these Terms at any time. Any change will take effect from the date on which ABD notifies the Customer of such change and will be deemed accepted by the Customer placing any Order after the date of notification.
5. These Terms will be governed by and construed in accordance with the laws of New Zealand. ABD and the Customer irrevocably submit to the non-exclusive jurisdiction of the courts of New Zealand