條款和條件
條款和條件
E-PACS WHOLESALES LIMITED – TERMS AND CONDITIONS
1. DEFINITIONS
1.1 E-PACS Wholesales Limited its successors and assigns or any person acting on behalf of and with the authority of E-PACS Wholesales Limited T/A E-PACS.
1.2 “Customer” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
1.3 “Goods” means all Goods or Services supplied by E-PACS to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable for the Goods as agreed between E-PACS and the Customer in accordance with clause 5 below and shall be New Zealand dollars ($NZD) unless otherwise specified.
2. ACCEPTANCE
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for the Goods (either verbally or in writing, specifying the quantity and description of the Goods ordered), or accepts Delivery. However, E-PACS may decline any order received by the Customer by written or verbal notice thereto. Notice of acceptance by E-PACS of any order from the Customer creates a contract on the terms and conditions of this agreement.
3. DESCRIPTIONS AND SPECIFICATIONS OF THE GOODS
3.1 All Goods to be supplied by E-PACS to the Customer are as described on the order agreed by E-PACS and the Customer, and the description on such order as so agreed prevails over all other descriptions of the Goods, including any specification or enquiry of the Customer.
3.2 All specifications and particulars of weights and dimensions submitted to E-PACS are approximate only and any deviation from any of these things does not vitiate any contract with E-PACS or form grounds for any claim against E-PACS
3.3 The descriptions and illustrations contained in catalogues, price lists and other advertising matter do not form part of the contract of sale of the Goods or of the description applied to the Goods.
4. PRICE AND PAYMENT
4.1 At E-PACS’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by E-PACS to the Customer in respect of Goods supplied; or
4.2 E-PACS’s current Price at the date of delivery of the Goods according to E-PACS’s current Price list; or
4.3 E-PACS’s quoted Price (subject to clause 5.7) which shall be binding upon E-PACS provided that the Customer shall accept E-PACS’s quotation in writing within thirty (30) days. The quotation shall in inclusive of Goods and Services Tax unless specifically stated to the contrary.
4.4 The Price may be increased by the amount of any reasonable increase in the cost of supply of the Products that is beyond the control of E-PACS (including, but not limited to, exchange rate fluctuations) between the date of the contract and delivery of the Products.
4.5 At E-PACS’s sole discretion a deposit may be required.
4.6 At E-PACS’s sole discretion payment shall be due of delivery of the Goods.
4.7 E-PACS reserves the right to change the Price if a variation to E-PACS’s quotation is requested.
4.8 Time for payment for the Goods shall be of the essence and will be stated on the invoice of any other forms. If no time is stated then payment shall be due twenty (20) days following the date of the invoice.
4.9 Payment may be made by cash, bank cheque, EFTPOS, online banking, or by any other method as agreed to between the Customer and E-PACS. Credit card payments are subjected to surcharge fees.
4.10 Receipt by E-PACS of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised, and until then E-PACS’s rights and ownership in respect of the Goods, and this agreement, shall continue.
4.11 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
5. DELIVERY OF GOODS
5.1 Delivery of the Goods (“Delivery”) is taken to occur at the time that:
(a) the Customer (or the Customer’s nominated carrier) takes possession of the Goods at E-PACS’s address; or
(b) E-PACS (or E-PACS’s or the Customer’s nominated carrier) delivers the Goods to the Customer’s nominated address, even if the Customer is not present at the address.
5.2 At E-PACS’s sole discretion, the cost of Delivery is determined by:
(a) postcode, country or weight of Goods and is in addition to the Price; and
(b) the shipping rates Goods E-PACS sells are weight-based and/or cubic-based. To reflect the policies of the shipping companies E-PACS use, all weights will be round-up to the next full kilo and shall appear on the shipping quote/order.
5.3 The Customer acknowledges that:
(a) the Goods are carried and stored at the Customer’s sole risk and not at the risk of E-PACS; and
(b) E-PACS is under no obligation to arrange insurance of the Goods and it remains the Customer’s responsibility to ensure that the Goods are insured adequately or at all; and
(c) under no circumstances will E-PACS be under any liability with respect to the arranging of any such insurance and no claim will be made against E-PACS for failure to arrange or ensure that the Goods are insured adequately or at all.
5.4 The Customer must take Delivery by receipt or collection of the Goods whenever they are tendered for Delivery. In the event that the Customer is unable to take Delivery as arranged (including where the Customer fails to provide delivery instructions within one (1) day of request by E-PACS of such) then E-PACS shall be entitled to charge a reasonable fee for the redelivery and/or storage of the Goods.
5.5 E-PACS may deliver the Goods in separate installments. Each separate installment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.6 Any time or date given by E-PACS to the Customer is an estimate only. In the event that E-PACS expects that E-PACS shall not be able to meet the estimated delivery date, then E-PACS will advise the Customer accordingly as soon as practicable. The Customer must still accept Delivery even if late and E-PACS will not be liable for any losses, liabilities, costs, damages, charges or expenses incurred by the Customer as a result of the Delivery being late.
5.7 It might not be possible for E-PACS to deliver to some locations. If this is the case, E-PACS will inform the Customer using the contact details that the Customer provides to E-PACS when the Customer places the order and arrange for cancellation of the order or delivery to an alternative delivery address.
6. ONLINE ORDERING
6.1 The Customer acknowledges and agrees that:
(a) E-PACS do not guarantee the websites performance or availability of any of its Goods; and
(b) on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades; and
(c) there are inherent hazards in electronic distribution and as such E-PACS cannot warrant against delays or errors in transmitting data between the customer and E-PACS including orders, and you agree that to the maximum extent permitted by law, E-PACS will not be liable for any losses which the Customer suffers as a result of online-ordering not being available or for delays or errors in transmitting orders.
6.2 E-PACS reserve the right to terminate your order if it learns that you have provided false or misleading information, interfered with other users or the administration of E-PACS Services, or violated these terms and conditions.
7. RISK
7.1 Risk of damage to or loss of the Goods passes to the Customer on the submission of the Goods to the Customer, their carrier or E-PACS’s carrier. E-PACS is not responsible to the Customer (or any person claiming through the Customer) for any loss or damage to Goods whilst in transit caused by an event of any kind by any person (whether or not E-PACS is legally responsible for the actions of that person). The Customer must insure the Goods on, or before, Delivery.
7.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, E-PACS is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by E-PACS is sufficient evidence of E-PACS’s rights to receive the insurance proceeds without the need for any person dealing with E-PACS to make further enquiries.
7.3 If the Customer requests E-PACS to leave Goods outside E-PACS’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
8. AGENCY
8.1 The Customer authorizes E-PACS to contract either as principal or agent of the provision of Products that are under the matter of this contract.
8.2 Where E-PACS enters into a contract of the type referred to in clause 9.1 it shall be read with and form part this agreement and the Customer agrees to pay any amounts due under that contract.
9. TITLE
9.1 E-PACS and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid E-PACS all amounts owing to E-PACS; and
(b) the Customer has met all of its other obligations to E-PACS.
9.2 Receipt by E-PACS of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised, and until then E-PACS’s rights and ownership in respect of the Goods, and this agreement, shall continue.
9.3 It is further agreed that, until ownership of the Goods passes to the Customer in accordance with clause 9.1:
(c) the Customer is only a bailee of the Goods and must return the Goods to E-PACS on request.
(d) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for E-PACS and must pay to E-PACS the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(e) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for E-PACS and must pay or deliver the proceeds to E-PACS on demand.
(f) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of E-PACS and must sell, dispose of or return the resulting product to E-PACS as it so directs.
(g) the Customer irrevocably authorises E-PACS to enter any premises where E-PACS believes the Goods are kept and recover possession of the Goods.
(h) E-PACS may recover possession of any Goods in transit whether or not Delivery has occurred.
(i) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of E-PACS.
(j) E-PACS may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
10. PERSONAL PROPERTY SECURITIES ACT 2009 (“PPSA”)
10.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
10.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by E-PACS to the Customer.
10.3 The Customer undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which E-PACS may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 10.3(a)(i) or 10.3(a)(ii);
(b) indemnify, and upon demand reimburse, E-PACS for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of E-PACS;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of E-PACS;
(e) immediately advise E-PACS of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
10.4 E-PACS and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions. The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
10.5 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
10.6 Unless otherwise agreed to in writing by E-PACS, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
10.7 The Customer shall unconditionally ratify any actions taken by E-PACS under clauses 7.1 to 7.5.
10.8 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
11. SECURITY AND CHARGE
11.1 In consideration of E-PACS agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
11.2 The Customer indemnifies E-PACS from and against all E-PACS’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising E-PACS’s rights under this clause.
11.3 The Customer irrevocably appoints E-PACS and each director of E-PACS as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Customer’s behalf.
12. DEFECTS, RETURNS, COMPETITION AND CONSUMER GUARANTEES ACT
12.1 The Customer must inspect the Goods on Delivery and must within forty-eight (48) hours of such time notify E-PACS in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow E-PACS to inspect the Goods.
12.2 Returns will only be accepted provided that:
a) the Customer has complied with the provisions of clause 10.1; and
b) the Goods are returned at the Customer’s cost within seven (7) days of the delivery date; and
c) E-PACS will not be liable for Goods which have not been stored or used in a proper manner; and
d) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
12.3 If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which E-PACS has agreed that the Customer is entitled to reject, E-PACS’s liability is limited to either (at E-PACS’s discretion) replacing the goods or crediting the Goods.
12.4 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires Products from E-PACS for the purposes of a business in terms of Section 2 and 43 of that Act.
13. DEFAULT AND CONSEQUENCES OF DEFAULT
13.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at E-PACS’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
13.2 If the Customer owes E-PACS any money the Customer shall indemnify E-PACS from and against all costs and disbursements incurred by E-PACS in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, E-PACS’s contract default fee, and bank dishonour fees).
13.3 Without prejudice to any other remedies E-PACS may have, if at any time the Customer is in breach of any obligation (including those relating to payment) E-PACS may suspend or terminate the supply of Goods to the Customer. E-PACS will not be liable to the Customer for any loss or damage the Customer suffers because E-PACS has exercised its rights under this clause.
13.4 Without prejudice to E-PACS’s other remedies at law E-PACS shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to E-PACS shall, whether or not due for payment, become immediately payable if:
(a) any money payable to E-PACS becomes overdue, or in E-PACS’s opinion the Customer will be unable to make a payment when it falls due; or
(b) the Customer is in material breach of any of their obligations under this agreement and, if the breach is capable of remedy, fails to remedy the breach for a period of thirty (30) days after receipt of a written notice from E-PACS requiring rectification of the breach;
(c) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
14. CANCELLATION
14.1 E-PACS may cancel any contract to which these terms and conditions apply or cancel Delivery at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice E-PACS shall repay to the Customer any money paid by the Customer for the Goods. E-PACS shall not be liable for any loss or damage whatsoever arising from such cancellation.
14.2 In the event that the Customer cancels Delivery the Customer shall be liable for any and all loss incurred (whether direct or indirect) by E-PACS as a direct result of the cancellation (including, but not limited to, any loss of profits).
15. PRIVACY ACT
15.1 The Customer and the Guarantor/s (if separate to the Customer) authorises E-PACS to:
(a) collect, retain and use any information about the Customer, for the purpose of assessing the Customer’s creditworthiness or marketing products and services to the Customer; and
(b) disclose information about the Customer, whether collected by E-PACS from the Customer directly or obtained by E-PACS from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer.
(c) Where the Customer and/or Guarantors are an individual the authorities under clause 17.1 are authorities or consents for the purposes of the Privacy Act 1993.
(d) The Customer and/or Guarantors shall have the right to request E-PACS for a copy of the information about the Customer and/or Guarantors retained by E-PACS and the right to request E-PACS to correct any incorrect information about the Customer and/or Guarantors held by E-PACS.
16. FORCE MAJEURE
16.1 Where E-PACS or the Customer is either wholly or in part is unable by reason of, an Act of God, strike, lockout, or other interference with work, war, blockade, disturbance, lightning, fire, earthquake, storm, flood, explosion, governmental restraint or embargo, unavailability or delay in availability of Goods, or transport, inability or delay in obtaining government approvals, or any other cause which is not reasonably within the control of the affected party (i.e. a force majeure event), to carry out any obligation under this agreement and that party:
(a) gives the other party prompt notice of that force majeure with full particulars of the probable extent to which it will be unable to perform, or be delayed in performing its obligations under this agreement; and
(b) uses all possible diligence to remove that force majeure as soon as possible; then those obligations shall be suspended so far as it is affected by the force majeure event and during its continuance provided that;
(c) an obligation to pay money is never excused by force majeure; and
(d) the requirement that any force majeure event shall be removed with all possible diligence shall not require the settlement of strikes, lockouts, or other labour disputes, or claims or demands by any government, on terms contrary to the wishes of the party affected.
17. GENERAL
17.1 The failure by E-PACS to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect E-PACS’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
17.2 Subject to clause 12, E-PACS shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including damage to the Customer’s reputation or goodwill, business interruption costs or loss of profit, etc.) suffered by the Customer arising out of a breach by E-PACS of these terms and conditions (alternatively E-PACS’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
17.3 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by E-PACS nor to withhold payment of any invoice because part of that invoice is in dispute.
17.4 E-PACS may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
18. AMENDMENTS TO THESE TERMS AND CONDITIONS
18.1 The Customer agrees that E-PACS may amend these terms and conditions at any time Amendments will be effective immediately and E-PACS has no obligation to notify the Customer of such amendments. The Customer will be taken to have accepted such changes if the Customer makes a further request for E-PACS to provide Goods to the Customer. E-PACS recommends the Customer to review E-PACS’s Terms and Conditions periodically through E-PACS’s website.
18.2 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
19. DISCLAIMER
19.1 E-PACS accepts no responsibility for the accuracy, currency, completeness or relevance of any material contained on their website or emails and recommends that users exercise care when using the material and obtain advice appropriate to their circumstances.
19.2 E-PACS does not warrant or represent that the material contained on their website or emails will not cause damage, or is free from any computer virus or other defects or errors.
19.3 E-PACS accepts no responsibility for the results of any omissions or actions taken on the basis of the material on their website or emails. E-PACS expressly disclaims all and any liability and responsibility to any person in respect of the consequences of anything done in respect of reliance, whether wholly or in part, resulting from the use of the material on the E-PACS.
19.4 Links to other websites are inserted for convenience and do not constitute endorsement of material at those sites or any associated organisations, product or service.
19.5 The material on their site or email may include views or recommendations of third parties. These views do not necessarily reflect the views of E-PACS. E-PACS makes no representation as to the suitability of any information and takes no responsibility for its accessibility.
19.6 The listing of a person or organisation in any part of their website in no way implies any form of endorsement of the products or services provided by that person or organisation.
19.7 The contents of the E-PACS website should not be used as a substitute for seeking legal or other independent professional advice.
20. GOVERNING LAW AND JURISDICTION
20.1 These terms and conditions are governed by and will be construed in accordance with the laws of New Zealand and you submit to the exclusive jurisdiction of the Courts of New Zealand.