Terms and Conditions of Sale
1. Definitions: In these terms and conditions of sale (‘Conditions’):
'Authorised Representative' means any of the Director, Chief Executive Officer or the Chief Financial Officer of TransNet;
‘Confidential Information’ shall include, but shall not be limited to, any information concerning a party's business activities and clients or associated bodies, but shall not extend to information to the extent that it:
'Contract' means the contract for the sale of the Goods and/or Services, supplied by TransNet;
'Customer' means the person firm, company, partnership, trust or entity:
'Goods' means all goods or work products which are supplied by TransNet under the Contract (or any other agreement, arrangement, or understanding between the parties) to the Customer;
‘Intellectual Property’ means any intellectual property or other property of a creative, branding, or innovative nature, including (as an example but without limitation) trade marks, designs, copyright, methods of business of manufacture, and confidential information;
‘PPSA’ means the Personal Property Securities Act 1999, and in these Conditions, unless the contrary intention appears, the terms “at risk”, “financing statement”, “financing change statement”, “proceeds”, “security interest” and “verification statement” each have the meanings given to those terms in the PPSA;
‘Premises’ means the physical address of the Customer noted on the Trade Account Application or as otherwise notified;
‘Sanctions’ means any trade, economic, financial or other sanctions administered or enforced by any relevant sanctions authority including, but not limited to, U.S. Department of Treasury’s Office of Foreign Assets Control, the United Nations Security Council, the European Union, the New Zealand Ministry of Foreign Affairs and Trade, or any other relevant sanctions authority;
‘Services’ means all services which are supplied by TransNet under the Contract (or any other agreement, arrangement, or understanding between the parties) to the Customer, including without limitation training, professional advice and hire services;
‘Trade Account Application’ means the application for a trade credit account between TransNet and the Customer in relation to the supply of Goods and/or Services;
'TransNet' means TransNet NZ Ltd and its successors and assigns;
Reference to any legislation includes its successor or amendment legislation; and the singular includes the plural and vice versa.
3. Orders:
3.1. All Goods and Services are subject to availability. Where Goods or Services are not available, TransNet has no obligation to supply the Customer.
3.2. All orders for Goods and/or Services shall be deemed to be an offer by the Customer to purchase the Goods and/or Services pursuant to these Conditions. To the extent that there is any inconsistency or conflict between the terms set out in an order form and the terms set out in these Conditions, the terms set out in these Conditions shall prevail No order submitted by the Customer shall be deemed to be accepted by TransNet unless and until confirmed in writing by an Authorised Representative.
3.3. No order which has been accepted by TransNet may be cancelled by the Customer except with the agreement in writing of an Authorised Representative and on terms that the Customer 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. The Customer is liable for full payment of any order for Goods and/or Services subsequently cancelled by the Customer unless otherwise agreed in writing by an Authorised Representative
3.4. To the maximum extent permitted by law, 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.
4. Price and Payment:
4.1. All prices are in New Zealand dollars and exclusive of goods and services tax and other government levies, unless otherwise stated, and the amount of goods and services tax shall be added to the price payable by the Customer.
4.2. The price for the Goods and Services shall be TransNet's quoted price. Unless otherwise notified in writing by an Authorised Representative, all prices are exclusive of, in the case of:
4.3. Prices are only valid for the time stated on any quotation, website, or price list, or if no time is stated, the date of the quotation, price list, or search of website, and is subject to change without notice. TransNet reserves the right, by giving notice to the Customer at any time:
4.4. Payment of the price for the Goods and Services shall be made by the Customer, and due (without any kind of deduction, counterclaim or set-off):
4.6. Payment of the price for the Goods and Services shall be deemed to be duly made by the Customer only upon TransNet's receipt of cash or cleared funds amounting to the price of the Goods and Services as detailed in the Contract.
4.7. Where payment for the price of the Goods and/or Services 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 Customer.
4.8. If the Customer 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 Customer; appropriate any payment made by the Customer and apply it to such of the Goods and Services for which payment is outstanding as TransNet may think fit; and charge the Customer interest (both before and after any judgment) calculated on a daily basis on the amount owing, at the rate of 1.5% per month until payment in full is made, and such interest shall accrue in the same manner until payment of the overdue amount and any interest is made in full.
4.9. Where TransNet has supplied Goods to the Customer under these Conditions, the Customer will pay to TransNet on a full indemnity basis all costs and expenses (including costs on a solicitor and client basis) that TransNet incurs in storage (where the Customer fails to take delivery), securing its position in relation to unpaid amounts owing, PPSA matters in clauses 8, 9 and 10, repossessing, and enforcing, or attempting to enforce any of TransNet’s rights under these Conditions.
5.1. The quantity, quality and description of and any specification for the Goods and/or Services shall be those set out in TransNet's quotation (if given to and accepted by the Customer) or the Customer's order (if accepted by TransNet).
5.2. TransNet may from time to time make changes in the quantity, quality and description of and any specification for the Goods and/or Services.
5.3. To the maximum extent permitted by law, TransNet makes no representation or warranty as to the fitness for purpose of a specification for any Good and/or Service provided to the Customer and that TransNet is solely responsible for the provision of the Goods and/or Services set out in TransNet’s quotation (if given to and accepted by the Customer) or the Customer’s order (if accepted by TransNet). The responsibility to assess whether a specification for any Good and/or Service is fit for the Customer’s purpose (i.e., that the Goods are approved for the Customer’s specific network) remains with the Customer.
To the maximum extent permitted by law, no representations or warranties concerning the Goods or Services are made by TransNet unless they are confirmed in writing by an Authorised Representative. In entering into the Contract, the Customer acknowledges that it does not rely on any such representations or warranties which are not so confirmed or expressly set out in these Conditions or the Contract.
6. Delivery:
6.1. The address for delivery of the Goods and/or Services shall be the address specified in the Customer’s order.
6.2. Delivery of the Goods shall be made by TransNet or its agent on the earlier to occur of:
6.3. Any dates quoted for delivery of the Goods and Services are approximate only. Although TransNet will endeavour to deliver the Goods and Services within the time requested, the time of delivery shall not be treated as a condition of sale and to the fullest extent permitted by law, and subject to clause 14.1.2 of these Conditions, TransNet shall not be liable to the Customer or any other party for any delay in delivery of the Goods or Services (or for any loss resulting from delay) however caused. Time for delivery shall not be of the essence of the Contract unless previously expressly agreed by an Authorised Representative in writing.
6.4. TransNet reserves the right to deliver the Goods by instalments. Where the Goods are delivered (or are 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 Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
6.5. If the Customer fails to take delivery of the Goods or fails to give TransNet adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Customer'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:
6.6. On delivery, the Goods shall be at the sole risk of the Customer. TransNet shall not be liable for any damage to the Goods once risk has passed.
7. Inspection and Returns:
7.1. The Customer shall inspect the Goods on delivery and shall, within three days of delivery, notify TransNet of any alleged defect or failure to comply with description or shortage in quantity. The Customer shall then afford TransNet an opportunity to inspect the Goods within a reasonable time following delivery and before any use is made of them. If the Customer shall fail to comply with these provisions, the Goods shall be conclusively presumed to be supplied in accordance with the Contract and free from any defect or damage or shortage and the Customer shall be deemed to have accepted the Goods. To the maximum extent permitted by law, any failure of the Goods or any damage caused by such failure shall not give rise to any claim against TransNet for any direct, indirect or consequential loss.
7.2. If the Goods are not in accordance with the Contract for any reason and the Customer has duly given TransNet notice thereof pursuant to clause 7.1, then to the maximum extent permitted by law, the Customer'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 Goods at TransNet's discretion or, if TransNet shall elect, by refunding a proportionate part of the price for the Goods under the Contract.
7.3. Where the Customer rejects any Goods, then to the maximum extent permitted by law, the Customer shall have no further rights whatever in respect of the supply to the Customer of such Goods by TransNet.
7.4. The Customer shall not be entitled to return any Goods without obtaining prior written approval from TransNet which, to the maximum extent permitted by law, shall be at TransNet’s sole discretion. Subject to TransNet granting such approval:
7.5. Subject to the other terms in this clause being satisfied, TransNet will issue a credit to the Customer for the returned Goods.
8. Location and title
8.1. Notwithstanding delivery and the passing of risk in the Goods, or any provisions to the contrary, the property in the Goods shall not pass to the Customer until TransNet has received payment in full for the price of the Goods. The Goods are held by the Customer as bailee only, until the Customer has paid TransNet in full for all Goods. Part payment of any amount for the Goods does not convey any part right, title, and interest in the Goods.
8.2. The Goods shall be held by the Customer at the Premises until the Goods have been sold in the ordinary course of the Customer’s business. The Customer shall not remove the Goods or allow the Goods to be removed from the Premises prior to sale without the prior written consent of TransNet.
8.3. Until such time as the property in the Goods passes to the Customer, the Goods shall either be kept separate from other goods or labelled in such a way so that the Goods are easily identifiable as belonging to TransNet and properly stored, protected and insured. The Customer must keep accurate financial records in order to trace the proceeds of any sale or other disposition of the Goods until the Goods are fully paid for. TransNet, or its agent(s), may on reasonable notice enter the Premises (or other premises to which the Customer has access and where the Goods are stored or where TransNet reasonably believes the Goods are stored) at any time, and search for and inspect the Goods and/or the Customer’s financial records relating to the Goods, without incurring any liability to the Customer or any person claiming through the Customer. The Customer may not revoke the permission granted in this clause.
8.4. TransNet shall be entitled to recover the price for the Goods notwithstanding that property in any of the Goods has not passed from TransNet.
9. Rights on Default
9.1. If the Customer shall be declared or adjudicated bankrupt, commit an act of bankruptcy, enter into a scheme or arrangement, 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, become or is likely to become insolvent, enter into any scheme or arrangement or assignment or composition for the benefit of creditors, have a statutory manager, liquidator, administrator, or receiver appointed over the whole or part of its assets or undertaking, or ceases or threatens to cease to carry on business, or if TransNet has grounds to believe that Goods which have not been fully paid for are at risk, then without prejudice to any other right or remedy available to it, the price for any Goods already delivered shall become immediately payable notwithstanding any agreement to the contrary and TransNet shall be entitled to:
9.2. The Customer acknowledges the following shall be deemed to be a default under these Conditions:
9.3. In exercising its rights pursuant to clause 9.2, TransNet shall be entitled to deduct from any sale of Goods or mixed goods recovered from the Customer all the liabilities and expenses (including legal expenses) incurred by TransNet in enforcing or attempting to enforce its rights pursuant to these Conditions.
10. PPSA:
10.1. The Customer grants to TransNet a security interest in all present and after acquired Goods supplied by TransNet to the Customer and all proceeds of the Goods for the purposes of the PPSA as security for the payment of the Goods and any amount owing by the Customer to TransNet from time to time.
10.2. The Customer acknowledges that it has received value as at the date of the first delivery of Goods under these Conditions and that nothing in these Conditions is an agreement that a security interest created herein attaches at a later time than the time specified in section 40(1) of the PPSA.
10.3. Each security interest created under these Conditions is a continuing security, notwithstanding any intermediate payments or settlements of accounts of anything else and is in addition to, and is not to be merged with, any other security or guarantee expressed or intended to be security for any other obligations owing by the Customer to TransNet.
10.4. On the request of TransNet the Customer shall promptly execute any documents and do anything else required by TransNet to ensure that the security interest created under these Conditions constitute a first ranking perfected security interest over the Goods and their proceeds including providing any information TransNet reasonably requires to complete a financing statement or a financing change statement.
10.5. The Customer:
10.6. TransNet is not required to marshal, enforce or apply under any security interest, guarantee or other entitlement held by TransNet at any time or any money or property that TransNet at any time holds or is entitled to receive.
10.7. The Customer agrees that its rights as debtor in sections 116, 120(2), 121, 127, 129 and 131 of the PPSA shall not apply to these Conditions.
10.8. The Customer must not give to TransNet a written demand or allow any other person to give TransNet a written demand, requiring TransNet to register a financing change statement or lodge a change demand or allow any other person to lodge a change demand, in each case in relation to a financing statement registered by us under the PPSA.
10.9. The Customer will pay to TransNet all costs, expenses and other charges incurred, expended or payable by TransNet in relation to the filling of a financing statement or a financing change statement in connection with these Conditions.
10.10. TransNet and the Customer also agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Conditions and that the Customer has none of the rights referred to in section 107(2)(a) to (i) of the PPSA.
10.11. The Customer 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.
11. Insurance:
11.1. For so long as:
11.2. The Customer must notify TransNet of the happening of any event in relation to Goods which are insured. Where the Customer receives any insurance proceeds for the Goods, such proceeds shall be paid to TransNet in reduction of amounts owing by the Customer to TransNet.
12. Services:
12.1. TransNet may suspend provision of the Services or refuse to provide Services at any time. TransNet may also sub-contract the whole or any part of the Services.
12.2. The Customer must not:
12.3. Where TransNet is supplying Services at the Premises the Customer must:
12.4. To the extent that TransNet provides training services, these Services are not an endorsement or qualification that can be referenced to third parties. TransNet does not represent or take any responsibility in relation to subsequent work undertaken by participants of such training. The Customer will not make, and will ensure its participants do not make, any representation to the contrary.
13. Confidentiality and Intellectual Property rights:
13.1. Each party will keep secret and confidential at all times, all Confidential Information of the other party and will not use, communicate, cause to be communicated, copy, make available or otherwise resupply any Confidential Information of the other party to any person other than those of its employees, contractors, agents, or representatives to whom disclosure is reasonably necessary for the purposes of these Conditions, or as otherwise required by law.
13.2. The Customer:
13.3. All Intellectual Property and other proprietary rights in works created by or on behalf of TransNet in its provision of the Service (such as documents, code or specifications) and in intangibles (such as ideas, know how, designs and trade secrets) will be owned exclusively by TransNet on creation.
14. Customer representations and warranties:
14.1. The Customer represents and warrants that:
14.2. The Customer represents, warrants and undertakes that:
14.3. The above representations and warranties apply at the time of every supply of Goods and/or Services under these Conditions.
15. Express Warranties for Goods:
15.1. TransNet provides the following express warranty regarding the Goods supplied under the Contract:
16. Limitation of Liability:
16.1. Subject to clause 15.1.6, the only warranty given by TransNet is the express warranty supplied to the Customer by TransNet or the manufacturer of the Goods in respect of specified Goods. Any such warranty may include situations that void the warranty. In relation to the Goods and Services, all other terms, conditions, warranties and representations expressed or implied, whether by operation of law, statutory or otherwise are expressly excluded (except any which may not lawfully be excluded).
16.2. TransNet’s liability to the Customer under the Fair Trading Act 1986 is limited to the fullest extent permitted by law. The Customer agrees that it is fair and reasonable that the parties are bound by the provisions in these Conditions.
16.3. Subject to any liability that cannot be excluded by law, TransNet’s total aggregate liability (whether in tort (including negligence), contract or otherwise) for any loss or damage or injury arising directly or indirectly from any defect in or non-compliance of any Goods or Services, or any other breach of TransNet’s obligations shall be limited to the price paid by the Customer for the relevant Goods and/or Services.
16.4. To the fullest extent permitted by law, TransNet will not be liable for any loss of profits, loss of revenue, loss of savings or for any indirect, consequential, special, exemplary, or incidental damages suffered by the Customer as a result of these Conditions, the Goods and/or the Services.
16.5. TransNet shall not be liable to the Customer 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 Goods an/or Services, if the delay or failure was due to any cause or event beyond TransNet's reasonable control (including any delay or failure caused by any act or omission of Customer or a third party).
16.6. The Customer 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.
17. General:
17.1. The enforcement, partial enforcement, waiver of rights, invalidity, or grant of time, of any of TransNet’s rights under these Conditions shall not be deemed to be a waiver or invalidity of any other of TransNet’s rights under these Conditions.
17.2. The Customer may not assign its rights under these Conditions, the Trade Account Application, and any other document between the Customer and TransNet without written consent of TransNet. TransNet may assign or transfer its rights and title under these Conditions without consent of the Customer.
17.3. Where any provision of these Conditions becomes illegal, invalid or unenforceable the remaining provisions of the Conditions will be unaffected.
17.4. The Customer consents to receive notices given pursuant to these Conditions and other communications from TransNet electronically.
17.5. The Contract shall be governed by, and interpreted in accordance with, the laws of New Zealand and each of the parties submits to the non-exclusive jurisdiction of the courts of New Zealand.
17.6. The Customer authorises TransNet to collect, use and hold personal information as set out in the Privacy Statement in the Trade Account Application 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 Customer authorises TransNet to disclose personal information held by TransNet for such purposes to any other third party.
17.7. TransNet reserves the right to amend and vary these Conditions from time to time on notice in writing to you. Notice of such variation shall be deemed to be given to each Customer by TransNet listing a note of such variation on its website at www.transnet.co.nz, and will be referenced in the applicable order confirmation presented by TransNet to Customer. Such revised terms will apply to all orders subsequently placed by Customer.
'Authorised Representative' means any of the Director, Chief Executive Officer or the Chief Financial Officer of TransNet;
‘Confidential Information’ shall include, but shall not be limited to, any information concerning a party's business activities and clients or associated bodies, but shall not extend to information to the extent that it:
a. was known to the receiving party prior to it entering into this agreement; or
b. is, or becomes, public knowledge without the fault of the receiving party; or
c. is, or becomes available to the receiving party from a source other than the disclosing party; or
d. is independently developed by the receiving party; or
e. is required to be disclosed by law or in accordance with a court order;
b. is, or becomes, public knowledge without the fault of the receiving party; or
c. is, or becomes available to the receiving party from a source other than the disclosing party; or
d. is independently developed by the receiving party; or
e. is required to be disclosed by law or in accordance with a court order;
'Contract' means the contract for the sale of the Goods and/or Services, supplied by TransNet;
'Customer' means the person firm, company, partnership, trust or entity:
a. named on the Trade Account Application as such; or
b. otherwise buying the Goods and/or Services, and its successors;
b. otherwise buying the Goods and/or Services, and its successors;
'Goods' means all goods or work products which are supplied by TransNet under the Contract (or any other agreement, arrangement, or understanding between the parties) to the Customer;
‘Intellectual Property’ means any intellectual property or other property of a creative, branding, or innovative nature, including (as an example but without limitation) trade marks, designs, copyright, methods of business of manufacture, and confidential information;
‘PPSA’ means the Personal Property Securities Act 1999, and in these Conditions, unless the contrary intention appears, the terms “at risk”, “financing statement”, “financing change statement”, “proceeds”, “security interest” and “verification statement” each have the meanings given to those terms in the PPSA;
‘Premises’ means the physical address of the Customer noted on the Trade Account Application or as otherwise notified;
‘Sanctions’ means any trade, economic, financial or other sanctions administered or enforced by any relevant sanctions authority including, but not limited to, U.S. Department of Treasury’s Office of Foreign Assets Control, the United Nations Security Council, the European Union, the New Zealand Ministry of Foreign Affairs and Trade, or any other relevant sanctions authority;
‘Services’ means all services which are supplied by TransNet under the Contract (or any other agreement, arrangement, or understanding between the parties) to the Customer, including without limitation training, professional advice and hire services;
‘Trade Account Application’ means the application for a trade credit account between TransNet and the Customer in relation to the supply of Goods and/or Services;
'TransNet' means TransNet NZ Ltd and its successors and assigns;
Reference to any legislation includes its successor or amendment legislation; and the singular includes the plural and vice versa.
2. Scope of these Conditions:
These Conditions apply to all offers, quotations, and agreements entered into between TransNet and the Customer for the supply of Goods and/or Services. By submitting the Trade Account Application or placing an order for Goods and/or Services, the Customer shall be deemed to accept these Conditions. 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 express written amendment by both parties. All other terms and conditions are expressly excluded unless they are in writing and signed by both parties.
3. Orders:
3.1. All Goods and Services are subject to availability. Where Goods or Services are not available, TransNet has no obligation to supply the Customer.
3.2. All orders for Goods and/or Services shall be deemed to be an offer by the Customer to purchase the Goods and/or Services pursuant to these Conditions. To the extent that there is any inconsistency or conflict between the terms set out in an order form and the terms set out in these Conditions, the terms set out in these Conditions shall prevail No order submitted by the Customer shall be deemed to be accepted by TransNet unless and until confirmed in writing by an Authorised Representative.
3.3. No order which has been accepted by TransNet may be cancelled by the Customer except with the agreement in writing of an Authorised Representative and on terms that the Customer 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. The Customer is liable for full payment of any order for Goods and/or Services subsequently cancelled by the Customer unless otherwise agreed in writing by an Authorised Representative
3.4. To the maximum extent permitted by law, 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.
4. Price and Payment:
4.1. All prices are in New Zealand dollars and exclusive of goods and services tax and other government levies, unless otherwise stated, and the amount of goods and services tax shall be added to the price payable by the Customer.
4.2. The price for the Goods and Services shall be TransNet's quoted price. Unless otherwise notified in writing by an Authorised Representative, all prices are exclusive of, in the case of:
4.2.1. Goods: delivery, packaging, freight, handling and insurance charges, and any GST, duty or other applicable taxes.
4.2.2. Services: travel costs and travel time, disbursements, consumables and a minimum admin fee of 10% to cover non-specified related costs..
4.3. Prices are only valid for the time stated on any quotation, website, or price list, or if no time is stated, the date of the quotation, price list, or search of website, and is subject to change without notice. TransNet reserves the right, by giving notice to the Customer at any time:
4.3.1. before acceptance of a Customer’s order, to increase the price of the Goods and/or Services without reason; and
4.3.2. after acceptance of a Customer’s order, to reflect any increase in the cost to TransNet which is due to any factor beyond the control of TransNet.
Upon such notice the Customer will confirm the order is to proceed on such revised pricing terms or may immediately terminate the order.
4.4. Payment of the price for the Goods and Services shall be made by the Customer, and due (without any kind of deduction, counterclaim or set-off):
4.4.1. by the 20th day of the month following the date of the invoice or such other time notified by TransNet, unless otherwise agreed in writing by an Authorised Representative;
4.4.2. immediately, where there has been a default under the Contract or these Conditions.
Time for payment shall be of the essence.
4.5. Any grant of credit, or a credit limit, by TransNet to the Customer is at TransNet’s sole discretion, and can be altered and/or cancelled by TransNet at any time without notice to the Customer.
4.6. Payment of the price for the Goods and Services shall be deemed to be duly made by the Customer only upon TransNet's receipt of cash or cleared funds amounting to the price of the Goods and Services as detailed in the Contract.
4.7. Where payment for the price of the Goods and/or Services 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 Customer.
4.8. If the Customer 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 Customer; appropriate any payment made by the Customer and apply it to such of the Goods and Services for which payment is outstanding as TransNet may think fit; and charge the Customer interest (both before and after any judgment) calculated on a daily basis on the amount owing, at the rate of 1.5% per month until payment in full is made, and such interest shall accrue in the same manner until payment of the overdue amount and any interest is made in full.
4.9. Where TransNet has supplied Goods to the Customer under these Conditions, the Customer will pay to TransNet on a full indemnity basis all costs and expenses (including costs on a solicitor and client basis) that TransNet incurs in storage (where the Customer fails to take delivery), securing its position in relation to unpaid amounts owing, PPSA matters in clauses 8, 9 and 10, repossessing, and enforcing, or attempting to enforce any of TransNet’s rights under these Conditions.
5. Description of Goods and Services:
5.1. The quantity, quality and description of and any specification for the Goods and/or Services shall be those set out in TransNet's quotation (if given to and accepted by the Customer) or the Customer's order (if accepted by TransNet).
5.2. TransNet may from time to time make changes in the quantity, quality and description of and any specification for the Goods and/or Services.
5.3. To the maximum extent permitted by law, TransNet makes no representation or warranty as to the fitness for purpose of a specification for any Good and/or Service provided to the Customer and that TransNet is solely responsible for the provision of the Goods and/or Services set out in TransNet’s quotation (if given to and accepted by the Customer) or the Customer’s order (if accepted by TransNet). The responsibility to assess whether a specification for any Good and/or Service is fit for the Customer’s purpose (i.e., that the Goods are approved for the Customer’s specific network) remains with the Customer.
To the maximum extent permitted by law, no representations or warranties concerning the Goods or Services are made by TransNet unless they are confirmed in writing by an Authorised Representative. In entering into the Contract, the Customer acknowledges that it does not rely on any such representations or warranties which are not so confirmed or expressly set out in these Conditions or the Contract.
6.1. The address for delivery of the Goods and/or Services shall be the address specified in the Customer’s order.
6.2. Delivery of the Goods shall be made by TransNet or its agent on the earlier to occur of:
6.2.1. delivering the Goods to the address specified in the Customer’s order, at any time after TransNet has notified the Customer that the Goods are ready for delivery; or
6.2.2. handing possession or control of the Goods to the Customer (or a third party on instruction by the Customer).
6.3. Any dates quoted for delivery of the Goods and Services are approximate only. Although TransNet will endeavour to deliver the Goods and Services within the time requested, the time of delivery shall not be treated as a condition of sale and to the fullest extent permitted by law, and subject to clause 14.1.2 of these Conditions, TransNet shall not be liable to the Customer or any other party for any delay in delivery of the Goods or Services (or for any loss resulting from delay) however caused. Time for delivery shall not be of the essence of the Contract unless previously expressly agreed by an Authorised Representative in writing.
6.4. TransNet reserves the right to deliver the Goods by instalments. Where the Goods are delivered (or are 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 Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
6.5. If the Customer fails to take delivery of the Goods or fails to give TransNet adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Customer'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:
6.5.1. store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage;
6.5.2. take all steps it deems necessary to prevent the deterioration of the Goods and charge the Customer for the reasonable costs incurred thereby; and/or
6.5.3. without any reference to the Customer,
6.5.3.1. where the Customer fails to make full payment of the price for the Goods on the due date or is otherwise in breach of its obligations under the Contract, treat the Contract as repudiated by the Customer and to sell the Goods at the best price readily obtainable or otherwise dispose of the Goods and claim any loss on resale from the Customer.
6.5.2. take all steps it deems necessary to prevent the deterioration of the Goods and charge the Customer for the reasonable costs incurred thereby; and/or
6.5.3. without any reference to the Customer,
6.5.3.1. where the Customer fails to make full payment of the price for the Goods on the due date or is otherwise in breach of its obligations under the Contract, treat the Contract as repudiated by the Customer and to sell the Goods at the best price readily obtainable or otherwise dispose of the Goods and claim any loss on resale from the Customer.
6.6. On delivery, the Goods shall be at the sole risk of the Customer. TransNet shall not be liable for any damage to the Goods once risk has passed.
7. Inspection and Returns:
7.1. The Customer shall inspect the Goods on delivery and shall, within three days of delivery, notify TransNet of any alleged defect or failure to comply with description or shortage in quantity. The Customer shall then afford TransNet an opportunity to inspect the Goods within a reasonable time following delivery and before any use is made of them. If the Customer shall fail to comply with these provisions, the Goods shall be conclusively presumed to be supplied in accordance with the Contract and free from any defect or damage or shortage and the Customer shall be deemed to have accepted the Goods. To the maximum extent permitted by law, any failure of the Goods or any damage caused by such failure shall not give rise to any claim against TransNet for any direct, indirect or consequential loss.
7.2. If the Goods are not in accordance with the Contract for any reason and the Customer has duly given TransNet notice thereof pursuant to clause 7.1, then to the maximum extent permitted by law, the Customer'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 Goods at TransNet's discretion or, if TransNet shall elect, by refunding a proportionate part of the price for the Goods under the Contract.
7.3. Where the Customer rejects any Goods, then to the maximum extent permitted by law, the Customer shall have no further rights whatever in respect of the supply to the Customer of such Goods by TransNet.
7.4. The Customer shall not be entitled to return any Goods without obtaining prior written approval from TransNet which, to the maximum extent permitted by law, shall be at TransNet’s sole discretion. Subject to TransNet granting such approval:
7.4.1. TransNet will issue a Product Return Number (“PRN”) ; and
7.4.2. Unless the Customer is returning defective Goods, the Customer will pay TransNet a re-stocking fee calculated at TransNet’s then current rate for the specific Good, ranging between 15% and 25% of the price paid by the Customer for the Goods plus GST; and
7.4.3. The Customer will return the Goods to TransNet’s Auckland premises at the cost and risk of the Customer with the CRN and in the same state and condition as at the time of supply with all packages in the condition they were when delivered to or collected by the Customer.
7.4.2. Unless the Customer is returning defective Goods, the Customer will pay TransNet a re-stocking fee calculated at TransNet’s then current rate for the specific Good, ranging between 15% and 25% of the price paid by the Customer for the Goods plus GST; and
7.4.3. The Customer will return the Goods to TransNet’s Auckland premises at the cost and risk of the Customer with the CRN and in the same state and condition as at the time of supply with all packages in the condition they were when delivered to or collected by the Customer.
7.5. Subject to the other terms in this clause being satisfied, TransNet will issue a credit to the Customer for the returned Goods.
8. Location and title
8.1. Notwithstanding delivery and the passing of risk in the Goods, or any provisions to the contrary, the property in the Goods shall not pass to the Customer until TransNet has received payment in full for the price of the Goods. The Goods are held by the Customer as bailee only, until the Customer has paid TransNet in full for all Goods. Part payment of any amount for the Goods does not convey any part right, title, and interest in the Goods.
8.2. The Goods shall be held by the Customer at the Premises until the Goods have been sold in the ordinary course of the Customer’s business. The Customer shall not remove the Goods or allow the Goods to be removed from the Premises prior to sale without the prior written consent of TransNet.
8.3. Until such time as the property in the Goods passes to the Customer, the Goods shall either be kept separate from other goods or labelled in such a way so that the Goods are easily identifiable as belonging to TransNet and properly stored, protected and insured. The Customer must keep accurate financial records in order to trace the proceeds of any sale or other disposition of the Goods until the Goods are fully paid for. TransNet, or its agent(s), may on reasonable notice enter the Premises (or other premises to which the Customer has access and where the Goods are stored or where TransNet reasonably believes the Goods are stored) at any time, and search for and inspect the Goods and/or the Customer’s financial records relating to the Goods, without incurring any liability to the Customer or any person claiming through the Customer. The Customer may not revoke the permission granted in this clause.
8.4. TransNet shall be entitled to recover the price for the Goods notwithstanding that property in any of the Goods has not passed from TransNet.
9. Rights on Default
9.1. If the Customer shall be declared or adjudicated bankrupt, commit an act of bankruptcy, enter into a scheme or arrangement, 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, become or is likely to become insolvent, enter into any scheme or arrangement or assignment or composition for the benefit of creditors, have a statutory manager, liquidator, administrator, or receiver appointed over the whole or part of its assets or undertaking, or ceases or threatens to cease to carry on business, or if TransNet has grounds to believe that Goods which have not been fully paid for are at risk, then without prejudice to any other right or remedy available to it, the price for any Goods already delivered shall become immediately payable notwithstanding any agreement to the contrary and TransNet shall be entitled to:
9.1.1. immediately enforce the security interest created under this Contract;
9.1.2. cancel all or any part of any Contract or suspend any further deliveries under the Contract without any liability to the Customer.
9.1.3. appoint any person or persons to be receiver of all or any of the Goods. A receiver has (in addition to the powers conferred by the Receiverships Act 1993, at law or otherwise and except to the extent expressly excluded by the receiver’s terms of appointment) all the powers in relation to the Goods to do anything the Customer (or a person with absolute ownership of the Goods and carrying on the business for its own benefit) could do and to exercise such powers on such terms and conditions as the receiver thinks fit.
9.1.2. cancel all or any part of any Contract or suspend any further deliveries under the Contract without any liability to the Customer.
9.1.3. appoint any person or persons to be receiver of all or any of the Goods. A receiver has (in addition to the powers conferred by the Receiverships Act 1993, at law or otherwise and except to the extent expressly excluded by the receiver’s terms of appointment) all the powers in relation to the Goods to do anything the Customer (or a person with absolute ownership of the Goods and carrying on the business for its own benefit) could do and to exercise such powers on such terms and conditions as the receiver thinks fit.
9.2. The Customer acknowledges the following shall be deemed to be a default under these Conditions:
9.2.1. if any amount payable by the Customer is overdue;
9.2.2. if the Customer fails to meet any obligation under, or there is a breach of any provision or warranty in these Conditions of the Contract, or if there is a breach of any obligation under any other contract between the Customer and TransNet; or
9.2.3. where TransNet has reasonable cause to believe any of the events in clause 9.1 have or are about to occur.
and in any such circumstance then, notwithstanding section 109 of the PPSA, and in addition to the rights contained in that section, TransNet may recover any or all of the Goods or the mixed goods and re-sell the Goods or the mixed goods and for such purpose may at any time of the day or night enter by force if necessary upon any premises where such Goods or mixed goods are reasonably thought to be stored (and the Customer grants to TransNet an irrevocable right and authority to so recover, re-enter and re-sell).
9.2.2. if the Customer fails to meet any obligation under, or there is a breach of any provision or warranty in these Conditions of the Contract, or if there is a breach of any obligation under any other contract between the Customer and TransNet; or
9.2.3. where TransNet has reasonable cause to believe any of the events in clause 9.1 have or are about to occur.
and in any such circumstance then, notwithstanding section 109 of the PPSA, and in addition to the rights contained in that section, TransNet may recover any or all of the Goods or the mixed goods and re-sell the Goods or the mixed goods and for such purpose may at any time of the day or night enter by force if necessary upon any premises where such Goods or mixed goods are reasonably thought to be stored (and the Customer grants to TransNet an irrevocable right and authority to so recover, re-enter and re-sell).
9.3. In exercising its rights pursuant to clause 9.2, TransNet shall be entitled to deduct from any sale of Goods or mixed goods recovered from the Customer all the liabilities and expenses (including legal expenses) incurred by TransNet in enforcing or attempting to enforce its rights pursuant to these Conditions.
10. PPSA:
10.1. The Customer grants to TransNet a security interest in all present and after acquired Goods supplied by TransNet to the Customer and all proceeds of the Goods for the purposes of the PPSA as security for the payment of the Goods and any amount owing by the Customer to TransNet from time to time.
10.2. The Customer acknowledges that it has received value as at the date of the first delivery of Goods under these Conditions and that nothing in these Conditions is an agreement that a security interest created herein attaches at a later time than the time specified in section 40(1) of the PPSA.
10.3. Each security interest created under these Conditions is a continuing security, notwithstanding any intermediate payments or settlements of accounts of anything else and is in addition to, and is not to be merged with, any other security or guarantee expressed or intended to be security for any other obligations owing by the Customer to TransNet.
10.4. On the request of TransNet the Customer shall promptly execute any documents and do anything else required by TransNet to ensure that the security interest created under these Conditions constitute a first ranking perfected security interest over the Goods and their proceeds including providing any information TransNet reasonably requires to complete a financing statement or a financing change statement.
10.5. The Customer:
10.5.1. shall not consent to or enter into any agreement which permits any supplier or other person to register a security interest in respect of the Goods or their proceeds subject to TransNet’s security interest, which ranks in priority to TransNet’s rights as first-ranking perfected security holder in the Goods and their proceeds;
10.5.2. shall notify TransNet in writing of a change of its name, address or contact at least 14 working days prior to the date on which the change of name becomes effective;
10.5.3. waives any right to receive a copy of any verification statement, financing statement or financing change statement under the PPSA.
10.5.2. shall notify TransNet in writing of a change of its name, address or contact at least 14 working days prior to the date on which the change of name becomes effective;
10.5.3. waives any right to receive a copy of any verification statement, financing statement or financing change statement under the PPSA.
10.6. TransNet is not required to marshal, enforce or apply under any security interest, guarantee or other entitlement held by TransNet at any time or any money or property that TransNet at any time holds or is entitled to receive.
10.7. The Customer agrees that its rights as debtor in sections 116, 120(2), 121, 127, 129 and 131 of the PPSA shall not apply to these Conditions.
10.8. The Customer must not give to TransNet a written demand or allow any other person to give TransNet a written demand, requiring TransNet to register a financing change statement or lodge a change demand or allow any other person to lodge a change demand, in each case in relation to a financing statement registered by us under the PPSA.
10.9. The Customer will pay to TransNet all costs, expenses and other charges incurred, expended or payable by TransNet in relation to the filling of a financing statement or a financing change statement in connection with these Conditions.
10.10. TransNet and the Customer also agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Conditions and that the Customer has none of the rights referred to in section 107(2)(a) to (i) of the PPSA.
10.11. The Customer 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.
11. Insurance:
11.1. For so long as:
11.1.1. any amounts are owing to TransNet the Customer must insure and keep the Goods insured once risk has passed ; or
11.1.2. the Customer fails to take delivery of the Goods or fails to give TransNet adequate delivery instructions at the time stated for delivery to the extent TransNet remains in possession of any Goods the Customer must insure and keep the Goods insured,
for the full insurable value or such other amount or amounts and against such risks and contingencies and on such terms as TransNet deems necessary.
11.1.2. the Customer fails to take delivery of the Goods or fails to give TransNet adequate delivery instructions at the time stated for delivery to the extent TransNet remains in possession of any Goods the Customer must insure and keep the Goods insured,
for the full insurable value or such other amount or amounts and against such risks and contingencies and on such terms as TransNet deems necessary.
11.2. The Customer must notify TransNet of the happening of any event in relation to Goods which are insured. Where the Customer receives any insurance proceeds for the Goods, such proceeds shall be paid to TransNet in reduction of amounts owing by the Customer to TransNet.
12. Services:
12.1. TransNet may suspend provision of the Services or refuse to provide Services at any time. TransNet may also sub-contract the whole or any part of the Services.
12.2. The Customer must not:
12.2.1. use the Services for any purpose not expressly permitted by TransNet; or
12.2.2. resupply the Services or otherwise make the Services available to any person, except with TransNet’s prior written consent in each instance.
12.2.2. resupply the Services or otherwise make the Services available to any person, except with TransNet’s prior written consent in each instance.
12.3. Where TransNet is supplying Services at the Premises the Customer must:
12.3.1. ensure that it provides TransNet with reasonable access to the Premises to enable TransNet to provide the Services; and
12.3.2. complies in all respects with the Health and Safety at Work Act 2015.
12.3.2. complies in all respects with the Health and Safety at Work Act 2015.
12.4. To the extent that TransNet provides training services, these Services are not an endorsement or qualification that can be referenced to third parties. TransNet does not represent or take any responsibility in relation to subsequent work undertaken by participants of such training. The Customer will not make, and will ensure its participants do not make, any representation to the contrary.
13. Confidentiality and Intellectual Property rights:
13.1. Each party will keep secret and confidential at all times, all Confidential Information of the other party and will not use, communicate, cause to be communicated, copy, make available or otherwise resupply any Confidential Information of the other party to any person other than those of its employees, contractors, agents, or representatives to whom disclosure is reasonably necessary for the purposes of these Conditions, or as otherwise required by law.
13.2. The Customer:
13.2.1. acknowledges that all Intellectual Property in relation to, and all other proprietary rights that may subsist in, the Goods and/or Services, and any underlying systems, software, or processes, and all Confidential Information relevant to the Services, or the system or business processes used to provide the Services (including all improvements made by any person thereto) (together, the ‘IP Rights’) belong solely to TransNet or its licensors (as the case may be);
13.2.2. agrees not to challenge TransNet’s claim to ownership of the IP Rights or to permit any act that is inconsistent with TransNet’s ownership of the IP Rights at any time, including after termination or expiry of these Conditions.is vested in, and owned exclusively by, TransNet and may not be used, reproduced or disclosed to any person other than in accordance with these Conditions;
13.2.3. acknowledges that the rights granted to the Customer under the Contract do not in any way affect the exclusive ownership by TransNet of the IP Rights; and shall not acquire any right, title or interest in TransNet’s Intellectual Property.
13.2.2. agrees not to challenge TransNet’s claim to ownership of the IP Rights or to permit any act that is inconsistent with TransNet’s ownership of the IP Rights at any time, including after termination or expiry of these Conditions.is vested in, and owned exclusively by, TransNet and may not be used, reproduced or disclosed to any person other than in accordance with these Conditions;
13.2.3. acknowledges that the rights granted to the Customer under the Contract do not in any way affect the exclusive ownership by TransNet of the IP Rights; and shall not acquire any right, title or interest in TransNet’s Intellectual Property.
13.3. All Intellectual Property and other proprietary rights in works created by or on behalf of TransNet in its provision of the Service (such as documents, code or specifications) and in intangibles (such as ideas, know how, designs and trade secrets) will be owned exclusively by TransNet on creation.
14. Customer representations and warranties:
14.1. The Customer represents and warrants that:
14.1.1. all information provided in the Trade Account Application is true, correct and complete;
14.1.2. the Customer is acquiring the Goods and Services for business purposes, and accordingly, if the Consumer Guarantees Act 1993 applies to the supply under these Conditions, to the fullest extent permitted by law and solely to the extent it is fair and reasonable to do so: the parties agree that this Act will not apply to such supply; and
14.1.3. it will notify TransNet of any change in ownership, control, status, or management of the Customer.
14.1.2. the Customer is acquiring the Goods and Services for business purposes, and accordingly, if the Consumer Guarantees Act 1993 applies to the supply under these Conditions, to the fullest extent permitted by law and solely to the extent it is fair and reasonable to do so: the parties agree that this Act will not apply to such supply; and
14.1.3. it will notify TransNet of any change in ownership, control, status, or management of the Customer.
14.2. The Customer represents, warrants and undertakes that:
14.2.1. it and persons directly or indirectly connected to the Customer, are not the subject of any Sanctions; and
14.2.2. it and persons directly or indirectly connected to the Customer, will not engage in any activity or be party to any transaction which would amount to a breach of any Sanctions; and
14.2.3. it is not subject to, or has any direct or indirect connection to, a New Zealand or any international sanctions regime, sanctioned person or sanctioned activity.
14.2.2. it and persons directly or indirectly connected to the Customer, will not engage in any activity or be party to any transaction which would amount to a breach of any Sanctions; and
14.2.3. it is not subject to, or has any direct or indirect connection to, a New Zealand or any international sanctions regime, sanctioned person or sanctioned activity.
14.3. The above representations and warranties apply at the time of every supply of Goods and/or Services under these Conditions.
15. Express Warranties for Goods:
15.1. TransNet provides the following express warranty regarding the Goods supplied under the Contract:
15.1.1. the Goods will perform to their written specifications without failure for a period of 12 months (“the Warranty Period”) provided that the Goods are used under normal operating conditions and are not subject to extreme or unusual weather conditions. The Warranty Period will commence on the date that the Goods are delivered to the Customer;
15.1.2. if any of the Goods fail to operate for the Warranty Period TransNet will (in its sole and absolute discretion) either repair the faulty Goods or supply a replacement with the same or similar specifications to the faulty Goods, free of charge to the Customer subject to the faulty Goods being delivered to TransNet during the Warranty Period;
15.1.3. the warranty in this clause shall not extend to any use which can be reasonably demonstrated to be outside normal operating conditions, or to use in extreme or unusual weather conditions (of which TransNet shall be the assessor in its sole and absolute discretion) or where TransNet is reasonably satisfied that the Goods have been the subject of ill use or a use for which they were not intended by their manufacturer. This warranty does not cover: (i) any cosmetic damage; (ii) normal wear and tear including deterioration of any wearable components or consumables; (iii) where the product’s serial number is no longer present or visible; (iv) loss or damage caused by factors beyond the control of TransNet; (v) defects that are due to the product not being installed, operated or maintained in accordance with any instructions provided with the product; (vi) defects that are due to accident, misuse, abuse or negligence (other than the negligence of TransNet); or (vii) defects that are due to any alterations or repairs to the product not authorised in writing or performed by TranNet;
15.1.4. TransNet shall not be liable under this warranty for the cost of any removal of any faulty Goods, the installation of any replacement Goods, or any other costs associated in any way with the failure of such Goods;
15.1.5. TransNet shall pay the reasonable costs of delivery of the replacement Goods within New Zealand;
15.1.6. the warranty in this clause shall not limit the Customer’s rights under the Consumer Guarantees Act except as contemplated in clause 14.1.2.
15.1.2. if any of the Goods fail to operate for the Warranty Period TransNet will (in its sole and absolute discretion) either repair the faulty Goods or supply a replacement with the same or similar specifications to the faulty Goods, free of charge to the Customer subject to the faulty Goods being delivered to TransNet during the Warranty Period;
15.1.3. the warranty in this clause shall not extend to any use which can be reasonably demonstrated to be outside normal operating conditions, or to use in extreme or unusual weather conditions (of which TransNet shall be the assessor in its sole and absolute discretion) or where TransNet is reasonably satisfied that the Goods have been the subject of ill use or a use for which they were not intended by their manufacturer. This warranty does not cover: (i) any cosmetic damage; (ii) normal wear and tear including deterioration of any wearable components or consumables; (iii) where the product’s serial number is no longer present or visible; (iv) loss or damage caused by factors beyond the control of TransNet; (v) defects that are due to the product not being installed, operated or maintained in accordance with any instructions provided with the product; (vi) defects that are due to accident, misuse, abuse or negligence (other than the negligence of TransNet); or (vii) defects that are due to any alterations or repairs to the product not authorised in writing or performed by TranNet;
15.1.4. TransNet shall not be liable under this warranty for the cost of any removal of any faulty Goods, the installation of any replacement Goods, or any other costs associated in any way with the failure of such Goods;
15.1.5. TransNet shall pay the reasonable costs of delivery of the replacement Goods within New Zealand;
15.1.6. the warranty in this clause shall not limit the Customer’s rights under the Consumer Guarantees Act except as contemplated in clause 14.1.2.
16. Limitation of Liability:
16.1. Subject to clause 15.1.6, the only warranty given by TransNet is the express warranty supplied to the Customer by TransNet or the manufacturer of the Goods in respect of specified Goods. Any such warranty may include situations that void the warranty. In relation to the Goods and Services, all other terms, conditions, warranties and representations expressed or implied, whether by operation of law, statutory or otherwise are expressly excluded (except any which may not lawfully be excluded).
16.2. TransNet’s liability to the Customer under the Fair Trading Act 1986 is limited to the fullest extent permitted by law. The Customer agrees that it is fair and reasonable that the parties are bound by the provisions in these Conditions.
16.3. Subject to any liability that cannot be excluded by law, TransNet’s total aggregate liability (whether in tort (including negligence), contract or otherwise) for any loss or damage or injury arising directly or indirectly from any defect in or non-compliance of any Goods or Services, or any other breach of TransNet’s obligations shall be limited to the price paid by the Customer for the relevant Goods and/or Services.
16.4. To the fullest extent permitted by law, TransNet will not be liable for any loss of profits, loss of revenue, loss of savings or for any indirect, consequential, special, exemplary, or incidental damages suffered by the Customer as a result of these Conditions, the Goods and/or the Services.
16.5. TransNet shall not be liable to the Customer 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 Goods an/or Services, if the delay or failure was due to any cause or event beyond TransNet's reasonable control (including any delay or failure caused by any act or omission of Customer or a third party).
16.6. The Customer 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.
17. General:
17.1. The enforcement, partial enforcement, waiver of rights, invalidity, or grant of time, of any of TransNet’s rights under these Conditions shall not be deemed to be a waiver or invalidity of any other of TransNet’s rights under these Conditions.
17.2. The Customer may not assign its rights under these Conditions, the Trade Account Application, and any other document between the Customer and TransNet without written consent of TransNet. TransNet may assign or transfer its rights and title under these Conditions without consent of the Customer.
17.3. Where any provision of these Conditions becomes illegal, invalid or unenforceable the remaining provisions of the Conditions will be unaffected.
17.4. The Customer consents to receive notices given pursuant to these Conditions and other communications from TransNet electronically.
17.5. The Contract shall be governed by, and interpreted in accordance with, the laws of New Zealand and each of the parties submits to the non-exclusive jurisdiction of the courts of New Zealand.
17.6. The Customer authorises TransNet to collect, use and hold personal information as set out in the Privacy Statement in the Trade Account Application 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 Customer authorises TransNet to disclose personal information held by TransNet for such purposes to any other third party.
17.7. TransNet reserves the right to amend and vary these Conditions from time to time on notice in writing to you. Notice of such variation shall be deemed to be given to each Customer by TransNet listing a note of such variation on its website at www.transnet.co.nz, and will be referenced in the applicable order confirmation presented by TransNet to Customer. Such revised terms will apply to all orders subsequently placed by Customer.