1. For the purposes of interpretation the following definitions will apply:
'Authorised Representative' means any of the Chief Executive Officer, the Financial Controller, any Director, and any General Manager of TransNet;
'Buyer' means the person buying the LED and its successors;
'Conditions' means these conditions of sale;
'Contract' means the contract for the sale of the LED produced by TransNet;
LED means the LED lights described in the Contract;
'TransNet' means TransNet NZ Ltd and its successors and assigns.
2. The Contract includes the Conditions which shall not be deemed or construed to be modified, rescinded or waived in whole or in part except by written amendment by the parties. All other terms and conditions are expressly excluded unless they are in writing signed by both parties.
3. All orders for the LED shall be deemed to be an offer by the Buyer to purchase the LED pursuant to these Conditions. No order submitted by the Buyer shall be deemed to be accepted by TransNet unless and until confirmed in writing by an Authorised Representative.
4. No order which has been accepted by TransNet may be cancelled by the Buyer except with the agreement in writing of an Authorised Representative on terms that the Buyer shall indemnify TransNet in full against all losses (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by TransNet as a result of cancellation.
5. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by TransNet shall be subject to correction without any liability on the part of TransNet.
6. The price for the LED shall be TransNet's quoted price. Unless otherwise notified in writing by an Authorised Representative, all prices are inclusive of delivery within New Zealand (excluding the Chatham Islands) including packaging, insurance and any applicable tax or duty provided that any order for a LED with a total price of less than NZ$50.00 (exclusive of any local or other taxes or duties) shall incur a freight and handling fee as specified by TransNet from time to time. The address for delivery of the LED shall be the address specified in the Buyer’s order.
7. TransNet reserves the right, by giving notice to the Buyer at any time before acceptance of a Buyer’s order, to increase the price of the LED to reflect any increase in the cost to TransNet which is due to any factor beyond the control of TransNet.
8. Payment of the price for the LED shall be due (without any deduction) by the 20th
day of the month following the date of the invoice unless otherwise agreed in writing by an Authorised Representative. Time for payment shall be of the essence.
9. Payment of the price for the LED shall be deemed to be duly made by the Buyer only upon TransNet's receipt of cash or cleared funds amounting to the price of the LED as detailed in the Contract.
10. Where payment for the price of the LED is made by way of a Letter of Credit or a Bill of Exchange with a bank, any costs, administrative or otherwise, incurred thereby shall be borne by the Buyer.
11. If the Buyer fails to make full payment on the due date or is otherwise in breach of its obligations under the Contract, then, without prejudice to any other right or other remedy, TransNet shall be entitled to cancel the Contract or suspend any further deliveries to the Buyer; appropriate any payment made by the Buyer to any LED as TransNet may think fit; and charge the Buyer interest (both before and after any judgment) from day to day on the amount unpaid, at the rate of 1.5% per month until payment in full is made.
12. The quantity, quality and description of and any specification for the LED shall be those set out in TransNet's quotation (if given to and accepted by the Buyer) or the Buyer's order (if accepted by TransNet).
13. TransNet may from time to time make changes in the quantity, quality and description of and any specification for the LED which are required to comply with any applicable safety or statutory requirements or which do not materially affect the quality or fitness for use of the LED.
14. No representations or warranties concerning the LED are made by TransNet unless they are contained in the Conditions or are confirmed in writing by an Authorised Representative. In entering into the Contract, the Buyer acknowledges that it does not rely on any such representations or warranties which are not so confirmed.
15. Except where the Buyer is a consumer (as the term ‘consumer’ is defined in the Consumer Guarantees Act 1993 (‘the Act’)) the guarantees contained in the Act that:
a) the LED supplied is of acceptable quality (sections 6 and 7), is reasonably fit for any particular purpose (section 8), complies with description (section 9), complies with sample (section 10), and is reasonable as to price (section 11); and
b) that facilities for the repair of the LED and supply of spare parts are available (section 12),
do not apply.
16. TransNet shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of TransNet's obligations in relation to the LED, if the delay or failure was due to any cause beyond TransNet's reasonable control.
17. Delivery of the LED shall be made by TransNet’s agent delivering the LED to the Buyer’s address specified in the Buyer’s order at any time after TransNet has notified the Buyer that the LED is ready for delivery.
18. Any dates quoted for delivery of the LED are approximate only and TransNet shall not be liable for any delay in delivery of the LED however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by an Authorised Representative in writing.
19. Where the LED is to be delivered in instalments, each delivery shall constitute a separate contract and failure by TransNet to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
20. If the Buyer fails to take delivery of the LED or fails to give TransNet adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer's reasonable control or by reason of TransNet's fault) then, without prejudice to any other right or remedy available to TransNet, TransNet shall be entitled to do any or all of the following at its sole discretion:
a) store the LED until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage;
b) take all steps it deems necessary to prevent the deterioration of the LED and charge the Buyer for the reasonable costs incurred thereby; and/or
c) without any reference to the Buyer:
i) where the Buyer fails to make full payment of the price for the LED on the due date or is otherwise in breach of its obligations under the Contract, treat the Contract as repudiated by the Buyer and to sell the LED at the best price readily obtainable or otherwise dispose of the LED; or
ii) where the Buyer has made full payment of the price for the LED on the due date and is otherwise not in breach of its obligations under the Contract, sell the LED at the best price readily obtainable or otherwise dispose of the LED and claim any loss on resale from the Buyer.
Notwithstanding the LED being sold or disposed of at a higher price, TransNet shall only be obliged to account to the Buyer for the price of the LED under the Contract after deducting all reasonable storage and selling expenses.
21. The Buyer shall inspect the LED on delivery and shall, within 3 days of delivery, notify TransNet of any alleged defect or failure to comply with description or shortage in quantity. The Buyer shall then afford TransNet an opportunity to inspect the LED within a reasonable time following delivery and before any use is made of it or them. If the Buyer shall fail to comply with these provisions, the LED shall be conclusively presumed to be supplied in accordance with the Contract and free from any defect or damage or shortage and the Buyer shall be deemed to have accepted the LED. Any failure of the LED or any damage caused by such failure shall not give rise to any claim against TransNet for consequential loss.
22. If the LED is not in accordance with the Contract for any reason and the Buyer has duly given TransNet notice thereof pursuant to clause 21, the Buyer's sole remedy shall be limited to TransNet making good any alleged defect, shortage in quantity or failure to comply with description by replacing or effecting rectification of such LED at TransNet's discretion or, if TransNet shall elect, by refunding a proportionate part of the price for the LED under the Contract.
23. Where the Buyer rejects any LED, the Buyer shall have no further rights whatever in respect of the supply to the Buyer of such LED by TransNet.
24. Risk of damage to or loss of the LED shall pass to the Buyer:
a) in the case of the LED to be delivered at TransNet's premises, at the time when TransNet notifies the Buyer that the LED is available for collection; or
b) in the case of LED to be delivered to the Buyer’s notified address, at the time of delivery to that place.
25. Notwithstanding delivery and the passing of risk in the LED, or any provisions to the contrary, the property in the LED shall not pass to the Buyer until TransNet has received payment in full for the price of the LED.
26. Until such time as the property in the LED passes to the Buyer, the Buyer shall hold the LED as TransNet's fiduciary agent and bailee, and shall keep the LED separate from those of the Buyer and third parties and properly stored, protected and insured and identified as TransNet's property.
27. Where TransNet has reasonable cause to believe:
a) the Buyer has not strictly complied with these Conditions and, in particular, default of payment in accordance with clause 9; or
b) any of the events detailed in clause 31 are about to occur;
then notwithstanding section 109 of the Personal Property Securities Act 1999 ("PPSA"), and in addition to the rights contained in that section, TransNet may recover any LED and re-sell the LED and for such purpose may at any time of the day or night enter by force if necessary upon any premises where such LED is reasonably thought to be stored (and the Buyer grants to TransNet an irrevocable right and authority to so recover, re-enter and re-sell).
28. TransNet shall be entitled to deduct from any sale of any LED recovered from the Buyer all the liabilities and expenses (including legal expenses) incurred by TransNet in enforcing or attempting to enforce its rights pursuant to clause 27.
29. In relation to the PPSA:
a) the Buyer grants to TransNet a security interest in all present and after acquired LEDs and their proceeds;
b) on the request of TransNet the Buyer shall promptly execute any documents and do anything else required by TransNet to ensure that the security interest created under these Conditions constitutes a first ranking perfected security interest over the LED and its proceeds including providing any information TransNet reasonably requires to complete a financing statement or a financing change statement. The Buyer waives any right to receive a copy of a verification statement under the PPSA;
c) the Buyer will pay to TransNet all costs, expenses and other charges incurred, expended or payable by TransNet in relation to the filing of a financing statement or a financing change statement in connection with these Conditions;
d) TransNet and the Buyer agree that nothing in sections 1 14(1)(a),
11 7(1)(c), 133 and 134 of the PPSA shall apply to these Conditions;
e) TransNet and the Buyer agree that the rights of the Buyer as debtor in sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA shall not apply to these Conditions;
f) the Buyer acknowledges that it has received a copy of these Conditions and in particular that the terms contained in these Conditions constitute a security agreement for the purposes of the PPSA.
30. TransNet shall be entitled to recover the price for the LED notwithstanding that property in the LED has not passed from TransNet.
31. If the Buyer shall be declared bankrupt, commit an act of bankruptcy or enter into a scheme or arrangement or make any assignment for the benefit of creditors, or, being a company shall resolve to go into liquidation, have an application for its winding up filed in any court of competent jurisdiction, enter into any scheme or arrangement or assignment or composition for the benefit of creditors, have an official manager or receiver appointed over the whole or part of its assets or undertaking, or ceases or threatens to cease to carry on business, then, without prejudice to any other right or remedy available to it, TransNet shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer and the price for any LED already delivered shall become payable forthwith notwithstanding any agreement to the contrary.
32. The Buyer shall not withhold payment of any invoice or other amount due to TransNet by reason of any right or alleged right of set-off or counterclaim whatsoever.
33. No waiver by TransNet of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the Contract.
34. Unenforceability of a provision of these Conditions does not affect the enforceability of any other provision of these Conditions.
35. The Contract shall be interpreted in accordance with the laws of New Zealand.
36. The Buyer authorises TransNet to collect and hold personal information from any source TransNet considers appropriate to be used for the purpose of determining credit worthiness, for communicating product information by TransNet, for debt collection purposes, or any other related purpose. The Buyer authorises TransNet to disclose personal information held by TransNet for the above purposes to any other third party.
37. TransNet reserves the right to amend and vary these Conditions from time to time. Notice of such variation shall be deemed to be given to the Buyer by TransNet listing a note of such variation on its website at www.transnet.co.nz
38. TransNet provides the following express warranty regarding any LED supplied under the Contract:
a) the LED will perform to its written specifications without failure for the period specified in the technical data sheets produced by TransNet from time to time (“the Warranty Period”) provided that the LED is used under normal operating conditions either in commercial or industrial buildings or attached to such buildings. The Warranty Period will commence on the date that the LED is delivered to the Buyer;
b) if any LED fails to operate for the Warranty Period TransNet will supply a replacement LED with the same or similar specifications to the faulty LED free of charge to the Buyer on the faulty LED being delivered to TransNet during the Warranty Period;
c) the warranty in this clause shall not extend to any use which can be reasonably demonstrated to be outside normal operating conditions (of which TransNet shall be the assessor in its sole and absolute discretion) or where TransNet is reasonably satisfied that the LED has been the subject of ill use or a use for which it was not intended by its manufacturer;
d) TransNet shall not be liable for the cost of any removal of any faulty LED or the installation of any replacement LED under this warranty;
e) TransNet shall pay the reasonable costs of delivery of the replacement LED within New Zealand.