TERMS AND CONDITIONS
Using this Website
These Standard Terms and Conditions written on this webpage shall manage and fully affect your use of this Website and our Terms and Conditions of Sale for Traded Goods and Services.
By using this Website, you agreed to accept all terms and conditions written in here. You must not use this Website if you disagree with any of these Website Standard Terms and Conditions.
Minors or people below 18 years old are not allowed to use this Website.
Terms and Conditions of Sale (2012-2025)
1. SALE
Small Batch Limited (SBL) will sell and the Purchaser will buy the Goods for the Purchase Price in accordance with these Standard Terms and Conditions of Sale, set out herein and as amended from time to time by SBL.
2. QUOTATION
2.1 The Quotation provided by SBL is incorporated into, and forms part of this Contract and is subject to the following:
a. unless otherwise agreed in writing by SBL, SBL may withdraw or vary the Quotation at any time prior to the Purchaser communicating in writing its acceptance of the Quotation;
b. unless otherwise provided in writing by SBL, any Quotation provided by SBL to the Purchaser will automatically expire, and no longer be valid for acceptance, if SBL has not received the Purchaser’s written acceptance of the quotation within 7 working days from Purchaser’s receipt of Quotation.
2.2 If the Purchaser requests any variation of the Goods to be supplied by SBL under the Quotation, SBL will provide the Purchaser with a new Quotation for the Goods which will include the requested variation(s).
2.3 Where the Quotation is for Good to be imported by SBL (whether directly or through another entity) for the Purchaser:
a. unless otherwise provided in writing by SBL, the Purchase Price shall be calculated on the higher of:
i. the New Zealand dollar rate of exchange applicable at the date of the Quotation; or
ii. the New Zealand dollar exchange rate at the time of delivery of the Goods; and
b. unless otherwise provided in writing by SBL, the Purchase Price includes carriage and insurance paid to the New Zealand port of discharge but is exclusive of all landing charges, wharfage, storage, customs clearance and entry, transport, insurance, and all customs duties, taxes and imposts of any kind which shall be to the account of and payable by the Purchaser.
2.4 All prices for Goods supplied by SBL are exclusive of any applicable taxes and levies, which shall be to the account of and payable by the Purchaser.
3. PURCHASE PRICE
3.1 On or before the Payment Date, the Purchaser must pay SBL the Purchase Price for the Goods by:
a. direct deposit into SBL’s nominated bank account; or
b. bank cheque; or
3.2. In addition to the Purchase Price payable by the Purchaser, the Purchaser shall pay any other costs SBL has incurred on behalf of and notified to the Purchaser or which SBL is entitled to claim against the Purchaser for the supply of Goods under the terms and conditions stated herein.
3.3. Where SBL and the Purchaser have agreed in writing for SBL to deliver the Goods in instalments, delivery of further instalments is conditional upon the Purchase Price for each instalment of Goods being paid on the Payment Date.
3.4. Where the Purchaser fails to pay the Purchase Price or any other payment due under this Contract by the Payment Date (or any other date approved in writing by SBL) then interest shall accrue on the unpaid amount at the Interest Rate, calculated on a daily basis, from the Payment Date until the Purchase Price and any accrued interest or funds owing under this Contract are paid in full.
3.5. The Purchaser acknowledges that they will be liable for any costs incurred (including all legal and collection charges) by SBL to enforce their rights and interests under this Contract, including all costs incurred by SBL to recover the Purchase Price, accrued interest or any other funds owing under this Contract.
3.6. Where this Contract is entered into by an agent (or a person purpoting to act as agent) on behalf of the Purchaser, the agent and the Purchaser shall be severally liable for payment of the Purchase Price, including any accrued interest or funds owing under this Contract.
3.7. SBL reserves the right to require the Directors/Shareholders of the Purchaser to provide a personal guarantee in relation to the payment of the Purchase Price, including any accrued interest or funds owing under this Contract (Personal Guarantee).
4. TITLE TO GOODS
4.1. SBL shall retain full title in the Goods until the Purchaser has paid SBL the Purchase Price and all other amounts owing under this Contract in full.
4.2. Where the Goods have been delivered to the Purchaser and the Purchase Price has not been fully paid, then the Purchaser must:
a. hold the Goods as agent for SBL;
b. receive any monies received from any on-sale of the Goods to a third party on trust for SBL;
c. keep the Goods and any monies received from any on-sale of the Goods to a third party separate and clearly identifiable;
d. promptly pay to SBL any monies received from any on-sale of any Goods, and such payment shall be a deduction from the Purchase Price; and
e. where the Contract is terminated without payment being made in full of the Purchase Price and any other money due under this Contract, return all Goods to SBL or allow SBL reasonable access to the Purchaser’s premise to enable the Goods to be recovered by SBL, at the Purchaser’s cost and expense.
4.3. Where any Goods have been on-sold by the Purchaser to a third party before the Purchase Price is fully paid, then the Purchaser must, if required by SBL, assign all rights to any claims it may have against such third parties to recover any unpaid amounts in respect of the Goods onsold.
4.4. Where for whatever reason the Goods become mixed with other goods then title to such Goods shall be assigned to SBL until full payment of the Purchase Price is received and the rights of SBL under this Contract shall apply to such other goods.
4.5. Notwithstanding any other provision in this Contract (but without limitation to any other rights of SBL, under this Contract or otherwise), where the Purchaser has failed to pay the Purchase Price by the Payment Date or any other date approved in writing by SBL then SBL shall be entitled to re-take possession of the Goods if they have not been on-sold. The Purchaser shall cooperate fully with SBL for the purpose of re-taking possession of such Goods.
5. RISK AND DELIVERY
5.1. The risk in the Goods passes to the Purchaser when the Goods are delivered to the Purchaser in accordance with clause 5.2, notwithstanding the retention of title by SBL in clause 4.
5.2. Delivery of the Goods will be deemed to take place upon the dispatch of the Goods from a SBL premise, warehouse or factory wherever situated whether or not the Goods are supplied within New Zealand.
5.3. Unless otherwise stated, delivery will be at the cost of the Purchaser, including without limitation, packaging, transportation, insurance, custom duties, port costs or charges, storage, taxes, surcharges and levies.
5.4. Unless the Purchaser has given specific written instruction as to the delivery of the Goods to SBL and SBL has confirmed receipt of such instructions in writing (including any insurance required by the Purchaser to be obtained in its name at its cost), delivery will be affected by any means or mode of transport determined by SBL in its absolute discretion.
5.5. SBL reserves the right to deliver the Goods by instalments and any delay in delivering an instalment of Goods by a date specified by SBL for delivery shall not entitle the Purchaser to terminate or rescind this Contract.
5.6. Any time frames given for delivery of any Goods (including in any Quotation) are estimates only and the Purchaser shall not be relieved of any obligation to accept the Goods and pay the Purchase Price for any Goods by reasons of any delay in delivery. Further SBL will not be liable for any Loss suffered by the Purchaser due to the delay.
6. RETURNS
a. Goods delivered under this Contract may not be returned by the Purchaser, for exchange, credit or any other amount, without SBL’s express consent in writing.
b. The Purchaser must make a written application to SBL for return of any Goods and such application must be received by SBL within fourteen (14) days from date of delivery.
c. Where approval is granted for return of any Goods by the Purchaser, SBL may charge a re-stocking fee of 15% of the invoiced value of the Goods which have been returned.
7. CANCELLATION
7.1. Any order placed and accepted by SBL under this Contract must not be cancelled by the Purchaser except:
a. by agreement in writing between both Parties; or
b. by payment by the Purchaser of any cancellation charges imposed by SBL and reasonable compensation for any work done and for any costs and expense incurred or committed for the supply of Goods; or
c. upon any other reasonable terms as determined by SBL for the cancellation by the Purchaser.
8. SECURITY
8.1. The Purchaser and any Guarantor(s) agree, for the purposes of securing the obligations and liabilities of the Purchaser arising out of this Contract to grant a continuing security interest in the Purchaser and any Guarantor’s right, title and interest in all the Purchaser’s and any Guarantor’s present and after acquired personal property and proceeds including without limit all present and after-acquired right, title and interest to all accounts receivable and all proceeds thereof (Collateral) by way of registration of a charge registrable on the Personal Property Securities Register over the Collateral.
8.2. For the purposes of the Personal Property Securities Act 1999 (PPSA) the Purchaser and any Guarantor acknowledge and agree that this Contract constitutes and creates a security agreement. The Purchaser and any Guarantor irrevocably undertake to execute any further documentation and/or provide any additional information (which information the Purchaser and any Guarantor warrant be complete, accurate and up to date in all respects) which SBL may reasonably require to enable registration of a financing statement or financing charge statement on the Personal Property Securities Register.
8.3. The Purchaser and any Guarantor(s) agree, for the purposes of securing the obligations and liabilities of the Purchaser arising out of this Contract to hereby charge and mortgage all their legal and equitable interests of whatever nature held in any real property both present and future on the Law Associations current all obligations form of mortgage. Furthermore, the Purchaser and any Guarantor(s) hereby consent to SBL lodging a caveat noting SBL’s proprietary interest arising from this Contract. The Purchaser and Guarantor(s) agree to execute any documents or do all such things as may be required by SBL to affect such security on demand by SBL. To give effect to the Purchaser’s and Guarantor’s obligations under this clause and any other liability under this Contract, the Purchaser and any Guarantor hereby grant to SBL an irrevocable power of attorney in relation to the property to enable SBL to execute the mortgage referred to in this clause.
8.4. In consideration of the Goods provided by SBL at the request of the Purchaser and the Guarantor(s), the Guarantor(s) in their personal capacity and jointly and severally personally undertake as principal debtors to SBL the payment of any and all amounts payable by the Purchaser to SBL and indemnify SBL against non-payment by the Purchaser. The Guarantee shall be a continuing guarantee and shall remain in full force until all of the Purchaser’s obligations under any Contract with SBL is fully satisfied.
9. INTELLECTUAL PROPERTY
All Intellectual Property in the Goods and any materials provided to the Purchaser by or on behalf of SBL in connection with this Contract shall remain vested in SBL or its licensors, and nothing in this Contract shall be taken to be a deemed assignment or licence of the Intellectual Property to the Purchaser. The Purchaser warrants to SBL and agrees that it will not modify, reverse engineer, tamper, attempt to repair, improve or upgrade the Goods, or otherwise deal with the Goods, except as expressly permitted by SBL under this Contract or to the extent permitted under applicable law.
10. CONFIDENTIALITY
10.1. The Purchaser must:
a. keep this Contract, the Intellectual Property and all information provided by SBL to the Purchaser under this Contract, strictly confidential (Confidential Information);
b. not disclose Confidential Information unless:
i. required by law; or
ii. it is already generally available in the public domain;
iii. to its employees, agents and consultants on a need-to-know basis only and must ensure that such persons also observe the confidentiality attaching to the Confidential Information.
c. if reasonably required by SBL, enter into any document required to protect SBL’s right, title and interest in the Intellectual Property or to maintain the confidentiality of the Confidential Information;
d. sign any document required by SBL to assign to SBL any right, title or interest in any improvements to the Intellectual Property which have been made by the Purchaser or its employees, agents or consultants including procuring where the context requires its employees, agents and consultants to sign such document;
e. return the Confidential Information and/or any copies thereof to SBL, or to deal with the Confidential Information strictly in accordance with SBL’s instructions;
f. comply immediately and strictly with SBL’s direction in regard to dealing with Confidential Information, including, upon written request, the return of any Confidential Information to SBL, or to destroy or delete from the Purchaser’s records and systems of any Confidential Information or copies thereof.
11. DESIGNS AND MATERIALS
11.1. Any Goods to be acquired by the Purchaser from SBL under this Contract which are required to be manufactured will be manufactured:
a. in accordance with SBL’s design and specifications for any Goods ordered by the Purchaser current at the date of the Quotation; and
b. using standard materials which are available or from the most suitable alternative where the standard materials are not available.
11.2. Where SBL manufactures any Goods ordered by the Purchaser in accordance with the design, manufacture methodology, specification, materials or otherwise as required by the Purchaser (Purchaser’s Specifications), such Purchaser’s Specifications shall be at the Purchaser’s cost and SBL will not be responsible or liable (including to any third party) for any performance, accuracy, suitability or reliability (or lack thereof) of such Purchaser’s Specifications or any Goods manufactured in compliance with the Purchaser’s Specifications.
11.3. The Purchaser must:
a. not make any representations, assume any obligations or give any warranties or guarantees (or similar) to any third parties (including third party purchasers of the Goods) which are inconsistent with or more onerous than those provided to the Purchaser by SBL under this Contract, including any warranties which bind SBL in relation to the fitness for purpose of any Goods manufactured by SBL in accordance with the Purchaser’s Specifications; and
b. indemnify and keep indemnified SBL against any and all loss incurred by SBL as a result of or in connection with any such representations, warranties, guarantees or obligations made or given by the Purchaser.
11.4. The Purchaser shall provide to SBL, free of cost, as soon as practicable following any request for information, all information which is in the Purchaser’s power to obtain and that may relate to the manufacturing or supply of the Goods. SBL shall not, without the Purchaser’s prior consent, use information provided by the Purchaser for purposes unrelated to the Goods. In providing the information to SBL, the Purchaser shall ensure compliance with the Copyright Act 1994 (or any such replacement legislation) and shall identify any proprietary rights that any other person may have in any information provided.
12. TOOLING
12.1. Where SBL and the Purchaser have entered into this Contract for SBL to manufacture Goods which are not standard items of its production, or are in accordance with the Purchaser’s Specifications, requiring the establishment by SBL of Tools then the Purchaser will be responsible for the total cost of the Tools or a portion thereof as is reasonably attributable to the extent of the Purchaser’s Specifications (Purchaser’s Tooling Cost). Agreeing to the amount of Purchaser’s Tooling Cost shall be a precondition to the Quotation and is in addition to the Purchase Price set out in the Quotation provided (unless otherwise expressly indicated in the Quotation).
12.2. Unless otherwise agreed in writing, all Tools manufactured or supplied by SBL:
a. shall be the property of SBL; and
b. SBL may sell any of the Tools to the Purchaser at prices set out in the Quotation.
12.3. Where, in the opinion of SBL, the condition of the Tools renders the Tools unusable due to fair wear and tear, or additional Tools are required to account for increased demand, then part of the cost of new Tools will be payable by the Purchaser for an amount agreed by the parties.
12.4. If the Purchaser supplies any Tools:
a. SBL will take reasonable care to ensure that they remain in good working condition subject to fair wear and tear in the circumstances, but no responsibility is accepted by SBL for any loss or damage to any Tools supplied by the Purchaser;
b. maintenance and repair of the Tools supplied by the Purchaser required under normal usage will be to the Purchaser’s account, as will be the cost of any modification necessary to adapt to SBL’s plant or production processes.
12.5. All Tools will be considered obsolete if no further orders have been placed by the Purchaser for production within three (3) years of the date of last supply by SBL to the Purchaser, and SBL will not accept any responsibility for their continued existence, usability or disposal after such period.
13. INSPECTION, SHORTAGES AND DAMAGED GOODS
13.1. Where the Purchaser requires special tests on Goods whether attended by the Purchaser, its representative or not, such tests, unless otherwise agreed, shall be made at SBL’s premises, or any other location which SBL considers appropriate, at the cost of the Purchaser.
13.2. In the event of any delay on the part of the Purchaser or its representative in attending such special tests, after seven (7) days’ notice of the Goods being available for testing, the tests will be held in the Purchaser’s absence, and the Purchaser will be deemed to have accepted the Goods and to have waived any claims in relation to the Goods.
14. QUANTITY TOLERANCES
Where SBL has contracted to manufacture or supply Goods which are other than its standard items, SBL reserves the right to vary the quantity delivered by a margin up to 10 percent (10%) in excess of the quantity ordered by the Purchaser and to charge for this variation in quantity on a pro rata basis.
15. PERFORMANCE AND TIMEFRAMES
15.1. The Purchaser warrants that it has not relied on any representations or warranties by SBL other than those in this Contract.
15.2. The Purchaser acknowledges and agrees that all figures or data supplied by SBL for performance of the Goods are intended to be a bona fide and reasonable estimate of the performance of the Goods expected under appropriate conditions and within certain defined parameters and tolerance limits at time of testing only. Unless SBL has specifically committed in writing to performance figures, within certain defined parameters, conditions and specific tolerance limits.
15.3 SBL is not liable for failure of any Goods to meet stated performance figures or data.
15.4. Any statement as to performance figures, whether in writing or otherwise, will not constitute a condition, warranty or representation.
15.5. The Purchaser acknowledges and agrees that any timeframes specified by SBL in relation to the Goods are estimates only and SBL is not liable for any failure to meet such timeframes.
16. GOODS WITH DEFECTS
16.1 If any Goods which, within a period of six (6) months from delivery and upon examination by an authorised SBL representative, are found to be defective in workmanship, material or design whereby they are unsuitable, under proper usage and service for the purpose for which they are intended and under proper maintenance in accordance with SBL’s specifications and/or materials, SBL will do one or more of the following (the choice of action being in SBL’s sole discretion):
a. replace such Goods free of charge;
b. repair or rectify such Goods either in-situ or at a site nominated by SBL; or
c. if agreed in writing by and under direction of SBL, arrange for the replacement, repair or rectification of such Goods by a third party nominated by SBL,
whereupon SBL may also pay for any transport costs relating to the replacement Goods or repairs but excluding cost of demobilisation and removal.
16.2. SBL’s obligations under clause 16.1 will not apply where:
a. Goods are not put to proper usage, application or service, or Goods are put to use in conditions outside of the defined or specified parameters, conditions and tolerance limits for manufacture or supply;
b. a defect results from the Purchaser’s Specifications (if supplied);
c. a defect results or arises from careless or improper handling by the Purchaser or user, incorrect fitting, non-observance of operating, maintenance or installation instructions, by repair or attempted repair by the Purchaser or a third party without the consent of SBL in writing;
d. the relevant defect is due to fair wear and tear;
e. the relevant Goods are, or were specified in the Quotation as, second-hand; or
f. the Goods, components thereof or accessories, are not manufactured or supplied by SBL; or
g. a defect is as a result of a defective product from the manufacturer of SBL’s base materials.
17. LIMITATION ON LIABILITY
17.1. To the maximum extent permitted by law, SBL will not be liable to the Purchaser for, and no measure of damages will, under any circumstances, include any of the following:
a. any Loss of an indirect, special, punitive, incidental or consequential nature;
b. loss of profits, loss of contract, loss of opportunity, loss of goodwill, loss of business reputation, loss of revenue, loss of use of property or loss of production;
c. increased costs of working or labour costs;
d. costs of capital; or
e. costs of business interruption, whether in contract, tort (including negligence), in equity, under statute, under an indemnity, based on fundamental breach or breach of a fundamental term or on any other basis, whether or not such loss or damage was foreseeable and even if advised of the possibility of the loss or damage.
17.2. SBL’s liability in respect of any implied warranties, guarantees or representations will be limited to the remedies set out in clause 21.2.
17.3. To the maximum extent permitted by law, notwithstanding any provision to the contrary, SBL’s total aggregate liability for all loss under or relating to this Contract or its subject matter, whether in contract, tort (including negligence), in equity, under statute, under an indemnity, based on fundamental breach or breach of a fundamental term or on any other basis, shall not, under any circumstances, exceed the amount of the Purchase Price received by SBL.
17.4. To the maximum extent permitted by law, SBL will not be liable for any loss, including any for personal injury, death or sickness, arising out of or in connection with use of the Goods, if:
a. the Purchaser has not informed SBL in writing that the Goods will or may be used in situations that will or may pose an occupational health and safety risk or hazard;
b. SBL has not, in its sole discretion, consented in writing to such use of the Goods; and
c. such use is not a reasonably foreseeable use of those Goods.
17.5. If either Party is found liable to the other (whether at contract, tort or otherwise), and the claiming Party and/or a third party has contributed to the loss or damage, the liable Party shall only be liable to the proportional extent of its own contribution.
17.6. Without limiting any defences a Party may have under the Limitation Act 2010, neither Party shall be considered liable for any loss or damage resulting from any occurrence unless a claim is formally made on a Party within six (6) years from supply of the Goods.
17.7. The Purchaser and SBL agree that where all or any of, the Goods are acquired for the purposes of a business the provisions of the Consumer Guarantees Act 1993 are excluded in relation to those Goods. However, nothing in this Contract shall restrict, negate, modify or limit any of the Purchaser’s rights under the Consumer Guarantees Act 1993 where the Goods acquired are of a kind ordinarily acquired for personal, domestic or household use or consumption and the Purchaser is not acquiring the Goods for the purpose of a business.
17.8. SBL has not and will not assume any duty imposed on the Purchaser pursuant to the Health and Safety at Work Act 2015 or any subsequent replacement legislation in connection with this Contract.
18. INDEMNITIES BY PURCHASER
18.1 The Purchaser indemnifies and shall keep indemnified SBL against loss suffered by SBL as a result of or in connection with:
a. Goods for which the Purchase Price has not been paid by the Payment Date or a date otherwise approved in writing by SBL;
b. an infringement of any Intellectual Property in any design, sample, material, specification or instruction given to SBL by the Purchaser (including in connection with any Purchaser’s Specifications).
19. TERMINATION
19.1. This Contract starts on the date that the Purchaser accepts the Quotation provided by SBL and will continue until it is terminated as permitted under these Standard Terms and Conditions of Sale or until the Goods have been delivered to the Purchaser and the Purchase Price (and any other sum due under this Contract) has been paid in full by the Purchaser, whichever is the earlier date.
19.2. SBL may terminate the Contract immediately if the Purchaser:
a. becomes bankrupt or insolvent;
b. makes or resolves to enter into any settlement, moratorium, arrangement with its creditors;
c. suffers a receiver, administrator, liquidator or provisional liquidator to be appointed;
d. being a body corporate, enters into liquidation;
e. is unable to pay its debts when they are due; or
f. commits a material breach of this Contract and, where the breach is capable of remedy, does not remedy the breach within 30 days of receiving a notice to do so, and the price for all Goods delivered and in the course of manufacture and any other amounts outstanding as at the date of, or arising as a result of, termination (including any cancellation charges), shall immediately become due and payable.
19.3 The Purchaser must give SBL written notice as soon as the Purchaser anticipates that an event in clause 19.2 will occur or has occurred.
19.4. Termination of this Contract under this clause does not affect any rights accruing or which have accrued to SBL.
19.5. For the avoidance of doubt, the parties agree that clauses 4, 8, 9, 17, 18, 19, 20, 21, 24 and 25 survive termination or expiry of this Contract together with any other term which by its nature is intended to do so.
20. DISPUTE RESOLUTION
20.1. If any dispute arises in relation to this Contract (Dispute), then either party may give the other party a written notice setting out the nature of the dispute (Notice of Dispute).
20.2. The Parties agree that they will in the first instance explore whether the Dispute can be resolved between them in good faith using informal dispute resolution techniques. If any Dispute is not resolved within 14 days from the date of the Notice of Dispute, the Parties will refer the Dispute to mediation by a mediator agreed to by the Parties or failing agreement appointed by the President of the Arbitrators and Mediators Institute of New Zealand or his or her nominee.
20.3. If the Dispute remains unresolved within 15 working days of referral to mediation (or reasonable timeframe which it takes to get to mediation, so long as such timeframe determined is agreed by the Parties within the 15 working day referral to mediation), the Parties will refer the Dispute to arbitration by an arbitrator agreed to by the Parties or failing agreement appointment by the President of the Arbitrators and Mediators Institute of New Zealand or his or her nominee. The decision of the arbitrator will be final and binding on the Parties.
20.4. The Parties shall share the costs of dispute resolution under this clause equally unless the meditator or expert gives a certificate that the conduct of a Party is such that it should bear all or a major portion of the costs.
20.5. Nothing in this clause shall prevent a party from applying to a Court of competent jurisdiction for an injunction or other equitable relief.
21. IMPLIED TERMS
21.1. All express or implied conditions, warranties, guarantees, representations or other terms relating to this Contract or its subject matter, not contained in this Contract (including warranties, guarantees or representations as to performance or fitness for purpose of the Goods), are excluded from this Contract to the maximum extent permitted by law.
21.2. Where any guarantee, warranty, term or condition is implied or imposed in relation to this Contract under any applicable legislation and cannot be excluded (Non-Excludable Provision), and SBL is able to limit the Purchaser’s remedy for a breach of the Non-Excludable Provision, then the liability of SBL for breach of the Non- Excludable Provision shall be limited, at the option of SBL, to one or more of the following:
a. if the breach relates to Goods:
i. the replacement of the Goods or the supply of equivalent Goods;
ii. the repair of the Goods;
iii. the payment of the Goods or of acquiring equivalent Goods; or
iv. the payment of the cost of having the Goods repaired.
b. if the breach relates to services:
i. the supplying of the services again; or
ii. the payment of the cost of having the services supplied again.
22. FORCE MAJEURE AND DELAY
22.1. If the occurrence of a Force Majeure Event prevents or is likely to prevent the supply of the Goods in accordance with the Contract, SBL may give the Purchaser written notice of the Force Majeure Event.
22.2. SBL must use its reasonable endeavours to remove the effect of each Force Majeure Event affecting its performance of the Contract and the Purchaser must provide all assistance reasonably requested by SBL to remove that effect.
22.3. If SBL is unable to perform or is delayed in performing an obligation under this Contract because of Force Majeure Event, the obligations of SBL under this Contract will be suspended, to the extent they are affected by the Force Majeure Event until the cessation of the Force Majeure Event.
22.4. SBL must give notice to the Purchaser of the cessation of a Force Majeure Event as soon as reasonably possible and must as soon as reasonably possible after cessation of that Force Majeure Event, resume performance of any obligation suspended as a result of it.
22.5. If the ability of SBL to perform its obligations under this Contract is materially or adversely affected by a Force Majeure Event for a period that continues beyond the date which is 60 days from the date of occurrence of the relevant Force Majeure Event, either party may:
a. request that the Goods be supplied by a mutually agreed alternative manner; or
b. cancel the Contract.
22.6. Each party must bear its own costs, and no party will have any claim for compensation against the other arising from the cancellation of the Contract pursuant to this clause.
22.7. SBL will have no liability to the Purchaser arising out of or otherwise in relation to this Contract to the extent caused by a failure of the Purchaser to perform any of its obligations under this agreement or the negligence or wilful misconduct of the Purchaser or any of its employees, officers, agents or subcontractors.
23. GST
23.1. For the purposes of this clause 23:
a. “GST”, “Supply”, “Tax Invoice” and “Taxable Supply” have the meanings given in the Goods and Services Tax Act 1985.
b. “GST Act” means Goods and Services Tax imposed under the Goods and Services Tax Act 1985 as amended from time to time.
23.2. The Purchaser acknowledges that the Purchase Price excludes GST unless stated otherwise.
23.3. The Purchaser acknowledges that GST and other taxes applicable to the supply of the Goods will be added to the Purchase Price and will be payable by the Purchaser on the Payment Date.
24. GENERAL
24.1 This Contract may not be amended, deleted or added to without the consent in writing of SBL.
24.2. The Purchaser must not assign its interest in this Contract without the consent of SBL in writing.
24.3. This Contract shall be governed by and construed in accordance with the laws of New Zealand and the parties submit to the jurisdiction of the courts of New Zealand.
24.4. The Purchaser shall pay to SBL any amount which SBL is required to pay on account of any excise or sales taxes, customs duty, goods and services tax, or any other taxes, duties or charges which may be established or levied by any governmental authority (domestic or foreign) upon the goods or any part thereof, or the manufacture, or sales of the same. Unless such taxes or other impositions have been specifically included in the price quoted, they shall be payable by the Purchaser as an extra charge.
24.5. Nothing in this Contract will constitute a partnership between the parties nor constitute one party the agent or representative of the other party.
24.6. Any notice or other communication to be given by a party to another party under this Contract must:
a. be in writing;
b. give the address of recipient as set out in this Contract or as revised by notice from the relevant party;
c. be left at or sent by prepaid/registered post to that address or sent by facsimile; and
d. be deemed to be served:
i. on the day of delivery; or
ii. three (3) days (if sent within New Zealand) or seven (7) days (if sent outside New Zealand) after the date of posting by prepaid; or
iii. on the date recorded on the transmission report if sent by facsimile or the next business day if outside business hours.
24.7. All payments made under this Contract must be made in New Zealand dollars in accordance with clause 3.1.
24.8. SBL reserves its absolute right to set off against any amounts payable under this Contract any other monies payable by SBL to the Purchaser and shall give the Purchaser reasonable notice of such set-off as and when it chooses to exercise this right.
24.9. This Contract contains the entire agreement of the parties with respect to the subject matter to which this Contract relates. All prior terms, agreements or representations, expressed or implied, are superseded by the Contract.
24.10. Where any inconsistency exists between the Quotation and these Standard Terms and Conditions of Sale (other than terms clearly provided for within the Quotation), these Standard Terms and Conditions of Sale shall prevail to the extent of the inconsistency.
24.11 If any clause or part of any clause is held by a court to be invalid or unenforceable, that clause or part of a clause is to be regarded as having been deleted from this Contract and this Contract otherwise remains in full force and effect.
25. DEFINITIONS
25.1. In this Contract:
a. Contract means the agreement made upon the Purchaser’s acceptance of the Quotation and these Standard Terms and Conditions of Sale.
b. Force Majeure Event means a labour dispute, lockout, act of government, war, riot, civil disturbance, embargo, storm, tempest, fire, flood, earthquake, natural calamity or other event beyond the reasonable control of SBL.
c. Goods means the goods which the Purchaser has ordered from SBL and for which SBL has given the Purchaser the Quotation and, where specified in the Quotation, any services which SBL has agreed to supply to the Purchaser.
d. Intellectual Property means intellectual and industrial property rights throughout the world including rights in respect of or in connection with any confidential information, copyright (including future copyright and rights in the nature of or analogous to copyright), moral rights, inventions (including patents), trademarks, service marks, designs and circuit layouts, manufacturing methods, know-how, processes, technology (whether patentable or not), illustrations, drawings and specifications and any improvements thereto, whether or not now existing and whether or not registered or registrable including any right to apply for the registration of such rights and all renewals and extension.
e. Interest Rate means the rate which is 12% per annum above the current commercial overdraft interest rate charged by SBL’s bank.
f. Loss means, in relation to any person, a damage, loss, cost, expense or liability incurred by the person or a claim, action, proceeding or demand made against the person, however arising and whether present or future, fixed or unascertained, actual or contingent.
g. SBL means the entity supplying Goods under the Quotation to the Purchaser.
h. Party or Parties means the SBL and/or Purchaser.
i. Personal Guarantor/Guarantee means the guarantee or the person providing the guarantee in accordance with clause 3.6 of the Terms and Conditions of Sale.
j. PPSA means the Personal Property Securities Act 1999.
k. Purchaser means the person set out in the Quotation.
l. Purchase Price means the amount set out in the Quotation.
m. Payment Date means the earlier of:
i. where SBL supplies the Goods within New Zealand, 20th of the month following the date of the invoice provided by SBL to the Purchaser for the Goods;
ii. where SBL supplies the Goods outside of New Zealand, three (3) working days after the Quotation is accepted by Purchaser (for any upfront payment specified in the Quotation); and the date SBL provides the overseas Purchaser with the appropriate negotiable shipping document as agreed on the Quotation (for payment of the balance specified in the Quotation); or
iii. unless a later date is otherwise approved in writing by SBL.
n. Quotation means the quotation which SBL has provided the Purchaser for the supply of Goods and services and which accompany these Standard Terms and Conditions of Sale, subject to clause 2.
o. Standard Terms and Conditions of Sale means the terms and conditions set out herein, as amended by SBL from time to time.
p. Tools means any tooling necessary for SBL to carry out the work in relation to this Contract and includes dies, tools, moulds, cutters and jigs.
26. INTERPRETATION
26.1. In this Contract:
a. a reference to a statute, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
b. a reference to a party includes a reference to the party’s executors, administrators, successors and assigns;
c. the singular includes the plural, and vice versa; and
d. “includes”, “including”, “for example”, “such as” and similar terms are not words of limitation.