Unless otherwise agreed in writing with DTA, these Terms & Conditions apply to the sale of Goods to the Customer by DTA
In the following Terms & Conditions of Sale (Terms):
- DTA means DTA New Zealand Ltd (NZBN. 9429046195012) and affiliated entities including those entities located in Australia;
- Contract or Security Agreement means this contract for the sale of Goods or as otherwise as defined by the PPSA;
- Customer means the person, firm or corporation, jointly and severally if there is more than one, acquiring Goods from DTA;
- Goods means the Goods and services provided by DTA to the Customer including any inventory;
- PPSA means the Personal Property Securities Act.
2.1 A quotation does not constitute an offer to sell Goods to the Customer. Any quotation provided by DTA to the Customer for the proposed supply of Goods is:
2.2 No Contract will exist between DTA and the Customer until a Customer’s order for Goods ("Order") has been accepted by DTA (such acceptance may be made and communicated by DTA in writing or by overt act of acceptance).
- valid for 30 days;
- an invitation to treat only;
- and only valid if in writing.
2.3 DTA may accept or refuse any Order in its absolute discretion and may make its acceptance of an Order conditional upon receiving a satisfactory credit assessment of the Customer.
2.4 If there is any variation to any of the information supplied by the Customer to DTA (including as to the structure or nature of the Customer’s business) the Customer must notify DTA in writing as soon as practicable.
2.5 Any terms and conditions specified by the Customer are expressly rejected and the Customer acknowledges that these Terms will govern all Contracts between the parties.
2.6 All special orders require a 20% non-refundable deposit payable within 2 days of receipt of a pro forma invoice.
2.7 DTA may vary these Terms by written notice to the Customer. Any Orders placed after the notice date will be deemed an acceptance of such varied Terms.
- PRICING & PAYMENT
3.1 The prices specified for Goods may at DTA’s option be altered to reflect additional charges in effect at the time of delivery.
3.2 Any variations to the price as a consequence of currency fluctuations, GST, taxes, customs duty or other imposts, will be to the Customer’s account.
3.3 DTA may vary the purchase price for the Goods if:
3.4 DTA will be entitled to set off against any money owing to the Customer by amounts owed to DTA.
- the Customer requests any variation to the Contract;
- or there are any changes in the costs incurred by DTA in relation to the Goods.
- ACCOUNT TERMS
4.1 The Customer acknowledges that time for payment to DTA is of the essence.
4.2 The Customer agrees to pay for all Goods delivered in any calendar month on or before the last trading day in the following month.
4.3 Payment by cheque is not deemed made until the proceeds of the cheque have cleared.
4.4 Credit extended to the Customer for all Goods sold will also be made in accordance with the Credit Terms as agreed by DTA at the time the Customer’s account was established or as subsequently altered by DTA.
4.5 DTA may withdraw the Customer’s credit facilities at any time or vary the Customer’s credit limit, without notice to the Customer.
4.6 In the event of DTA instructing its solicitors to collect an overdue amount, all legal fees and collection charges and tracing agents fees as between solicitor and client will be borne by the Customer and all payments made will first be allocated towards such fees and charges thereafter to interest and finally to capital.
4.7 The Company may allow the Customer to purchase and continue to purchase Goods as long as the total of the Customer’s account does not exceed its pre-approved account limit.
4.8 The Customer must provide DTA with satisfactory written trade references and/or a satisfactory trade or status report from a credit rating agency acceptable to DTA.
4.9 DTA may require additional references/reports from time to time and additional information if the Customer applies to increase the Customer’s account limit.
4.10 The Customer acknowledges that DTA may decline the Customer’s application to purchase DTA’s Goods.
4.11 The Customer acknowledges that DTA may revoke any credit granted to the Customer at any time.
5.1 If the Customer defaults in payment by the due date of any amount payable to DTA, then all money which would become payable by the Customer to DTA at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and DTA may, without prejudice to any of its other accrued or contingent rights:
5.2 Clauses 5.1(c) and (d) may also be relied upon, at DTA's option, where the Customer becomes bankrupt or insolvent or enters into any scheme of arrangement or has a liquidator, administrator or similar functionary appointed in respect of its assets.
- charge the Customer interest at the rate of 18% per annum calculated daily for the period from the due date until the date of payment in full;
- charge the Customer for, and the Customer must indemnify DTA from, all costs and expenses (including without limitation all legal costs and expenses, collection costs, dishonour fees and stamp duty) incurred by it resulting from the default or in taking action to enforce compliance with the Contract;
- withhold for such period as DTA thinks fit, any further deliveries of Goods to the Customer; and
- by written notice to the Customer, terminate any uncompleted Contract with the Customer.
6.1 Any times quoted for delivery are estimates only and DTA will not be liable for any loss or damage suffered by the Customer or any third party for failure to deliver or for delay in delivery of Goods. The Customer will not be relieved of any obligation to accept or pay for Goods by reason of any delay in delivery.
6.2 DTA will deliver the Goods “Free Into Store” unless otherwise stated by DTA.
6.3 Where Goods are stated to be delivered "ex works", the Customer must arrange, at its own cost, for the collection of the Goods from DTA within 7 days of notification that the Goods are ready. If the Customer does not collect the Goods within this time, the Customer will be deemed to have taken delivery from such date and is liable for storage charges on demand.
6.4 A signed receipt will be conclusive evidence of the Customer’s acceptance of the Goods delivered.
6.5 DTA reserves the right to deliver Goods by instalments and DTA may invoice the Customer for the Goods provided.
6.6 The Customer indemnifies DTA against any loss or damage suffered by DTA, its sub-contractors or employees as a result of delivery, except where excluded by law.
6.7 Minimum order value for all orders is $250.00. Any order under this value will attract a $25.00 freight and handling charge.
6.8 Minimum order value for pick up orders is $50.00. Any order to under this value will attract a $15.00 handling charge.
7.1 Unless otherwise agreed in writing, any backorder under the value of $15.00 will be cancelled and must be reordered.
7.2 Any backorder under $50.00 will be kept on hold until the next order once the stock becomes available, and will then be sent to Customer. Any backorder over $50.00 will be sent to Customer once the stock becomes available.
- DEFERMENT OR CANCELLATION OF ORDERS
8.1 Unless otherwise agreed in writing, orders cannot be cancelled or deferred. If DTA does agree to cancellation, the Customer agrees to pay a cancellation fee equal to: the cost of the raw materials or tools already acquired; or the greater of:
8.2 If orders are deferred, the Customer agrees to pay any price variation as a consequence of currency fluctuations, taxes and customs duty.
- The proportion of the order completed multiplied by the manufacturing cost; and
- 25% of the manufacturing cost attributable to the order.
8.3 If DTA advises the Customer that raw materials or tools required for the supply of Goods pursuant to an order are not readily available, the Customer or DTA may cancel such order without any further liability to the other party.
8.4 If DTA accepts the Customer's cancellation of an order, DTA may recover from the Customer the cost of materials or tools already acquired prior to such cancellation.
- PROPERTY AND RISK
9.1 The Goods will be at the sole risk of the Customer as soon as they are delivered or deemed to be delivered.
9.2 The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer, or third parties, arising out of the use or possession of the Goods sold by DTA, unless recoverable from DTA on the failure of any statutory guarantee under the Australian Consumer Law.
9.3 Until DTA receives full payment in cleared funds for all Goods supplied by it to the Customer, as well as all other amounts owing to DTA by the Customer:
- Property in and title to the Goods remain vested in DTA and will not pass to the Customer;
- The Customer holds the Goods as fiduciary bailee for DTA;
- the Customer must store the Goods separately from its own Goods and retain DTA's labelling and packaging;
- the Customer must hold the proceeds of sale of the Goods on trust for DTA, however failure to do so will not affect the Customer's obligation to deal with the proceeds as trustee;
- DTA may, without notice, enter any premises where it suspects the Goods are and remove them, and for this purpose the Customer irrevocably licenses DTA to enter such premises and also indemnifies DTA from and against all costs, claims, demands or actions by any party arising from such action.
- PERSONAL PROPERTY SECURITIES ACT
10.1 The Customer acknowledges and agrees that the following provisions will apply to these Terms as the accepted and adopted Security Agreement between DTA and the Customer. For the purposes of the PPSA whether in Australia or in New Zealand.
10.2 The Customer acknowledges, agrees and grants to DTA, a security interest in:
10.3 The Customer acknowledges and agrees the security interest is a continuing and subsisting interest in the Goods with priority over any registered or unregistered general (or other) security interest and any unsecured creditor.
- all Goods and any proceeds previously supplied by DTA to the Customer;
- all Goods and any proceeds that will be supplied in the future by DTA to the Customer; and
- this security interest secures all moneys owing by the Customer to DTA under these Terms or otherwise.
10.4 The Customer acknowledges that the security interest over Goods or their proceeds arising under these Terms as and where applicable will be a purchase money security interest (PMSI) and deemed to be inventory to the extent that it secures payment of amounts owing in relation to the Goods.
10.5 The Customer will do everything reasonably required of it by DTA to enable DTA to register its security interests with the priority DTA requires and to maintain those registrations including:
10.6 The security interests arising under this clause 9 will be perfected by DTA prior to the Customer obtaining possession on delivery of the Goods and the parties confirm they have not agreed that any security interest arising under this clause 9 attaches at any later time.
- signing any documents and/or providing any information which DTA may reasonably require to register a financing statement or a financing change statement in relation to a security interest;
- or to correct a defect in a financing statement.
10.7 DTA does not need to give the Customer any notice under the PPSA (including notice of the financing statement or verification statement) unless required by the PPSA.
10.8 Any time the Customer makes a payment to DTA, irrespective of whether the payment is made under or in connection with this Agreement, DTA may apply that payment:
10.9 For the avoidance of doubt and without prejudice to DTA's rights under the PPSA, the Customer :
- first to satisfy and obligation that is not secured;
- second, to satisfy an obligation that is secured, but not by a PMSI;
- and third, to satisfy an obligation that is secured by a PMSI for that obligation and using proceeds from the sale of the collateral subject to that PMSI;
- and fourth, to satisfy an obligation that is secured by a PMSI using funds or proceeds from any source; or
- despite the foregoing, any manner DTA as the secured party sees fit.
10.10 If, in relation to Australian shipments, Chapter 4 of the PPSA would otherwise apply to the enforcement of the security interests created under these Terms, the Customer agrees that sections 95, 120, 121(4), 125, 128, 129, 130, 132, 134, 135, 142, 143 and 157 of the PPSA will not apply to the enforcement of those security interests.
- may process the Goods supplied by DTA to the Customer and accession or commingle them with other property in which case DTA will have a security interest in any processed, accession and commingled Goods; and
- may sell the Goods to its customers and if it does so, then DTA will have a security interest in the proceeds of sale; and
- will, where and when applicable and instructed by DTA, implement, maintain and comply in all material respects with, procedures for the perfection of security interests, including taking all steps under the PPSA to perfect continuously any such security interest.
10.11 The Customer agrees not to disclose to an 'Interested person' (as defined in section 275(9) of the PPSA) or any other person, any Information of the kind described in section 275(1) of the PPSA including these Terms as the security agreement between the Customer and DTA.
10.12 The Customer will notify DTA immediately in writing if the Customer changes its name / address for service, contact details or if there are any changes required under the PPSA in respect of these Terms.
10.13 The Customer agrees to keep and maintain all Goods free of any charge, lien, or security interest except as created under these Terms and not otherwise to deal with Goods in a way that will, or may, prejudice the rights of DTA under these Terms or the PPSA.
10.14 The Customer irrevocably grants to DTA the right to enter any premises or property of the Customer without notice, and without being in any way liable to the Customer or any other person, if DTA has cause to exercise any of its rights under the PPSA, and in particular under section 123, and the Customer agrees to indemnify DTA against any such liability whatsoever.
10.15 The Customer’s right to possession of Goods still owned by DTA under these Terms will cease if:
10.16 The Customer agrees that DTA is entitled to enter any premises where the Goods supplied by DTA are still unpaid for, repossess and sell such Goods. The Customer agrees to indemnify and keep DTA indemnified in respect of any claims, actions and costs that may arise against DTA in relation to the removal, repossession and sale of the Goods pursuant to these Terms including any claims brought by third parties.
- the Customer being an individual, commits an act of bankruptcy, or,
- the Customer being a Company, circumstances arise where a Receiver, Manager, administrator or controller becomes entitled to take possession of any of the Customer’s assets, any proceedings are instituted for winding up, or the Customer enter into a Deed of Company Arrangement; or
- the Customer ceases or threatens to cease conducting business in the normal manner or apply for deregistration or receive a deregistration notice; or
- any cheque the Customer provides to DTA is dishonoured for payment; or
- the Customer fails to comply with any demand for payment issued by DTA; or
- the Customer is in breach any of these Terms or is in default of any other agreement with DTA.
10.17 The Customer agrees that repossession and retention of the Goods pursuant to the PPSA will only satisfy so much of the monies which may become payable to DTA by the Customer, as is equivalent to DTA’s estimation of the market value of the Goods as it is at the date of repossession and the repossession and retention will immediately extinguish any rights for interest the Customer has in relation to the Goods.
10.18 Until any obligations owed to DTA by the Customer are discharged in full, the Customer must not give DTA a written demand or allow any other person to give DTA a written demand requiring DTA to register a financing change statement under the PPSA or enter into or allow any other person to enter into the PPSR, a financing change statement.
- RETURN OF GOODS
11.1 DTA will not be liable for any shortages, damage or non-compliance with the specifications of the Contract, unless the Customer notifies DTA with full details within 10 days of delivery and DTA is given an opportunity to inspect the Goods and investigate the complaint before any further dealing. If the Customer fails to give such notice, it will be deemed to have accepted the Goods and will be bound to pay for them.
11.2 Where a return of Goods is accepted by DTA:
11.3 The original invoice number and authorised credit paperwork must accompany all Goods returned to DTA.
- DTA may, at its option, repair or replace the Goods, or refund the purchase price of the Goods; and
- The greater of $25 or 15% of the return order, restocking fee will apply.
11.4 Unless prohibited by law, DTA will not accept Goods for return that:
- have been specifically produced to fulfil any Contract;
- have been altered in any way;
- are not in their original condition and packaging;
- have not been used, stored, handled or installed in accordance with DTA's instructions;
- have been damaged as a result of the Customer's cleaning products used on the Goods.
- CLAIMS UPON SUPPLIER
12.1 Except as specifically set out in these Terms, or as contained in any express warranty provided in relation to the Goods, the Contract between DTA and the Customer does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Goods or any contractual remedy for their failure.
12.2 If the Customer is a consumer as defined in the ACL, nothing in these Terms restricts, limits or modifies the Customer's rights under the ACL.
12.3 If the Customer on-supplies the Goods to a person who is a consumer:
howsoever arising under or in connection with the sale, use of, storage or any other dealings with the Goods by the Customer or any third party.
- if the Goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the amount specified in the ACL is the absolute limit of DTA's liability to the Customer;
- otherwise, payment of any amount required under the ACL is the absolute limit of DTA's liability to the Customer;
12.4 If clause 11.2 or 11.3 do not apply, then other than as stated in the Terms or any written warranty statement, DTA is not liable to the Customer in any way arising under or in connection with the sale, use of, storage or any other dealings with the Goods by the Customer or any third party.
12.5 DTA is not liable to the Customer or any third party in respect of any indirect or consequential loss or damage suffered or incurred by the Customer or any third party except to the extent of any liability imposed by the ACL.
12.6 These Terms do not exclude or limit the application of any provision of law which cannot be so excluded or limited.
13.1 The Customer agrees that it does not rely on the skill or judgement of DTA in relation to the Goods or their use or application.
13.2 The Customer acknowledges that it has not made known either expressly or by implication to DTA any purpose for which it requires the Goods and it has the sole responsibility of satisfying itself that the Goods are suitable for the Customer's use.
- TRUST AND TRUSTEES
14.1 Where the Customer is a trustee:
- The Customer agrees to produce a stamped copy of the trust deed (with all amendments) if and when requested by DTA.
- The Customer warrants that it has full power and authority to enter into this Agreement on behalf of the trust and that it will be bound by these Terms both personally and as trustee, irrespective of whether or not it discloses to DTA that it is a trustee at the time of entering into any credit agreement with DTA.
15.1 DTA reserves the right to sub-contract the manufacture and/or supply of Goods or any part thereof to a third party.
- DEFERMENT OR CANCELLATION OF ORDERS
16.1 Unless otherwise agreed in writing, orders that are within one (1) week of the time estimated for delivery cannot be deferred or cancelled. If DTA agrees to the cancellation of such Orders, the Customer will pay to DTA a cancellation fee equal to the greater of:
16.2 If DTA advises the Customer that raw materials or tools required for the supply of Goods pursuant to an Order are not readily available, the Customer or DTA may cancel such Order without any further liability to the other party.
- The proportion of the Order completed multiplied by the manufacturing costs attributable to the Order; or
- 25% of the manufacturing costs attributable to the Order.
16.3 If DTA accepts the Customer's cancellation of an Order, DTA may recover from the Customer the cost of materials or tools already acquired prior to such cancellation.
17.1 DTA at all times retains the right of possession of any skips, pallets and other packaging used for delivery of the Goods, as well as any display stands provided to the Customer.
17.2 The Customer agrees to indemnify and reimburse DTA in respect of any skips, pallets or display stands not returned to DTA in good order and condition within 14 days of demand.
18.1 The law of New Zealand from time to time governs these Terms for shipments in New Zealand or int eh case of shipments to New Zealand, the law of New Zealand will apply.
18.2 DTA's failure to enforce any of these Terms will not be construed as a waiver of any of DTA's rights
18.3 If any of these Terms are unenforceable, it will be read down to be enforceable or, if it cannot be read down, the term will be severed from these Terms without affecting the enforceability of the remaining Terms.
18.4 A notice must be in writing and handed personally or sent by fax, email or prepaid mail to the addressee. Notices sent by mail are deemed to be received 3 days after posting. Notices sent by fax or email are deemed received on confirmation of transmission.
18.5 These Terms override the Customer’s Terms. To the extent of any discrepancy between these Terms and any third party (including the Customer’s own) Terms, these Terms prevail.
18.6 These Terms constitute the entire Agreement (including Security Agreement) between the parties and no amendment or variation will be of any force and effect unless in writing and signed by both DTA and the Customer.
18.7 The Signatory/ies binds himself/herself/themselves jointly and severally as surety and co-principal debtor/s in with the Customer in favour of DTA, its order or assigns, for the payment of any amount which is now due or owing by the Customer to DTA.
18.8 No relaxation or indulgence granted by DTA to the Customer will be deemed as a waiver of any rights of DTA in these Terms and such relaxation or indulgence will not be deemed a novation of any of these Terms.
18.9 DTA will not be responsible for any loss or damage howsoever caused to the property or person of the Customer or any third party as a result of any defect in the Goods whether patent or latent, and the Customer indemnifies DTA against any claims made against it by any third party arising out of any such defects.
18.10 Where a Director/Partner or Proprietor uses or authorises the use of his or her Signature in whatever form, including approving an authorised person including any employee to apply his or her Signature to the Credit Application or any other agreement, or leaving an authorised person with his or her email address and password in order to provide authorisation to DTA, the Director/Partner or Proprietor acknowledges and agrees that he/she:
- has full knowledge of the Terms and all material circumstances related to or as stated in the Credit Application or any other agreement between the parties;
- has provided the requisite authority in whatever form for the use of his or her Signature for the express purposes of agreement between the parties;
- and acknowledges that DTA has relied upon that Signature as having been duly signed with full and complete authority (express, implied or ostensible) by the Director/Partner or proprietor; and
- understands the nature and effect of the Credit Application, Terms and any other agreement between the parties, and has had the opportunity of obtaining independent legal advice.