The terms of trade set out below govern all of the supplies of goods and services from
Aurora Pacific Ltd (“Aurora Pacific”) to you. They will replace any terms and
conditions contained in any document used by you and purporting to have contractual effect,
and your acceptance of any goods or services from Aurora Pacific indicates your
acceptance of these terms of trade. These terms of trade are effective from 1 Jan 2011 and
replace all earlier terms of trade between you and Aurora Pacific.
1.
Orders
1.1
Aurora Pacific accepts orders from the customer only on the terms set out in this
document. Where we deliver an order by instalments, each instalment will comprise a
separate contract.
1.2
Orders may be cancelled only if Aurora Pacific agrees in writing to the cancellation,
and the order has not been processed
2.
Delivery and risk
2.1
You are responsible for insurance and risk in the goods from the time they are
delivered by a carrier to you, or the time they are collected by you or your agent.
2.2
Where you request a special mode of delivery (outside of our standard mode of
delivery), you will be responsible for the cost.
2.3
You do not have the right to possess goods until they are delivered to you, or collected
by you or your agent. Where you ask us to deliver goods directly to another person,
that person takes possession of the goods for you as your agent.
2.4
All claims for shortage or damage during delivery must be made to in line with our Loss
and Damage Claim Guidelines.
2.5
Aurora Pacific will make every effort to ensure delivery of goods, or performance of
services, is on time, but will not be liable to you for any loss or damage arising in any
way from any delay in delivery or performance.
3.
Price
3.1
Prices may be subject to change without notice. Aurora Pacific will invoice goods at
the prices ruling at the time you place your order.
3.2
You agree to pay goods and services tax and any other government duties, levies or
taxes in respect of the goods ordered.
4.
Payments and property
4.1
Unless Aurora Pacific has agreed in writing to extend credit to you, you must pay for
goods in cash or by approved credit card on placement of your order. Credit card
payment may incur a transaction fee of up to 4%.
4.2
Where Aurora Pacific has agreed to extend credit to you, you must pay in full, without
deduction or set-off, by the 20th day of the month following the date of invoice. You will
not be considered to have paid until the payment has been fully cleared through the
banking system into Aurora Pacific’s bank account.
4.3
If Aurora Pacific has agreed to accept your payment by direct debit from your bank
account, you undertake to keep your back account in sufficient funds to meet the direct
debit. If any direct debit is reversed, Aurora Pacific will refuse to supply any further
goods until you have paid all outstanding sums in full.
4.4
Aurora Pacific reserves the right to require payment of the whole or part of the price
of the goods before accepting any order or part order.
4.5
If your account becomes overdue, Aurora Pacific reserves the right to place your
account on a non-supply or cash only basis.
4.6
If you have not paid in full by the due date, Aurora Pacific may charge you interest
compounding monthly on the unpaid overdue balance at the rate of 5% per annum
above the current overdraft rate charged by Aurora Pacific's bankers, and
Aurora Pacific may at its option charge costs (including collection costs and legal costs on a
solicitor-client basis) and suspend delivery of further goods until the account is paid.
4.7
Property and ownership in goods, whether in their original form or incorporated into or
attached to another product, will not pass to you but will remain with Aurora Pacific
until Aurora Pacific receives payment in full of the purchase price of the goods and all
other amounts that you owe to Aurora Pacific for any reason.
4.8
Until property passes to you, you shall receive and hold any goods as trustee and
bailee for Aurora Pacific, and store and sell them in a manner to enable them to be
identified and cross referenced to particular invoices.
4.9
Unless otherwise notified in writing, where goods are supplied to you as consignment
stock or inventory for resupply, you are authorised to sell the goods in the ordinary
course of your business, but you must keep the proceeds of any goods sold in trust for
Aurora Pacific.
4.10
You must not resell or part with possession of any machinery, equipment or software
that we supply for your own use before you have paid all amounts you owe us in full,
unless we have given you written consent.
4.11
Notwithstanding clauses 4.2 and 4.3 above, all payments shall immediately become
due to Aurora Pacific if we reasonably believe that the information which you have
given us in your application for credit is not correct and you have failed to give us
correct information within 5 days of our request, if you sell or otherwise dispose of the
goods (in whole or in part) without our consent, if you become insolvent, commit any
act of bankruptcy, or if a receiver, liquidator or statutory manager is appointed over any
of your assets or undertaking, if you fail to comply with any of the provisions of clause
5, or if you make or attempt to make an arrangement or composition with creditors.
4.12
Where Aurora Pacific reasonably believes that any collateral is at risk or that you are
or are likely to be in breach of any part of clauses 4 or 5 of this agreement,
Aurora Pacific or its agent may enter your premises without further notice to remove any
goods which are the property of Aurora Pacific, including goods which are installed in
or affixed to other goods, and you indemnify Aurora Pacific against all costs and
claims in respect of its exercise of rights under clause 4 or clause 5 of this agreement.
5.
Security interests
5.1
The goods supplied to you and secured by these terms of trade, are described on each
of our invoices.
5.2
If we extend credit to you or if you owe us money for any reason, you agree to grant us
a security interest in the goods that we have supplied to you together with their
proceeds, whether or not those goods have become accessions to other goods or
processed or commingled into other goods. You agree that you will do all acts
necessary and provide us on request all information we require to register a financing
statement over the goods and their proceeds, and that you will advise us immediately
in writing of any changes to that information. You waive all rights to receive a copy of
any verification statement of a financing statement.
5.3
You agree that you will supply Aurora Pacific, within 2 business days of its written
request, with copies of all security interests registered over your personal property, and
you authorise Aurora Pacific as your agent to request information from any secured
party relating to any security interest which is held in any personal property which is or
has been in your possession or control.
5.4
You agree that Aurora Pacific, at its option may require you to pay all reasonable
costs, including legal costs (on a solicitor client basis), associated with the discharge or
amendment of any financing statement registered by Aurora Pacific, whether or not
the change was initiated by you.
5.5
If we repossess goods under this agreement, we may retain those goods or dispose of
them without notice to you and, after deducting reasonable costs of sale, credit any
surplus, by way of setoff against any sums owing to us. We shall not be obliged to
furnish you with a statement of account or to pay to any other person any sum in
excess of the total amount you owe us at the time we credit your account. We will not
be obliged to reinstate this agreement or resupply any repossessed inventory or
equipment to you.
6.
Goods returned for credit
6.1
Aurora Pacific will not accept the return of goods, which are not faulty, unless you
have made a request before the goods are returned, as per the Aurora Pacific Goods
Returned policy, and Aurora Pacific has agreed to their return and given you a return
authorisation number. The goods must be returned freight and insurance prepaid in
original packing in “as new” and saleable condition, with a copy of the original purchase
invoice including the return authorisation number clearly noted.
7.
Aurora Pacific Warranties
7.1
Goods are subject to the manufacturers’ warranties only. Aurora Pacific will pass on
the benefit of those warranties to you or your customers, as the case may be, without
itself being directly liable to you under any warranty. Your customers may have
additional rights under the Consumer Guarantees Act 1993.
7.2
Where goods are subject to a return to base warranty, you are responsible for returning
them to Aurora Pacific, and you may be responsible for additional costs including (but
not limited to) freight.
7.3
You will not be entitled to the benefit of any warranty if any sum that you owe
Aurora Pacific for any reason is overdue.
7.4
Any warranty will be voided by damage to or misuse of the system, including problems
caused by misuse or damage after the goods have left Aurora Pacific’s care,
negligent installation or operation, inadequate packaging, cleaning or maintenance,
unauthorised repairs, modifications or the addition of hardware, software or
consumables not supplied by Aurora Pacific.
7.5
Where the goods or services that you acquire from Aurora Pacific are not of a kind
ordinarily acquired for personal household or domestic use or consumption, or where
you acquire, or hold yourself out as acquiring, the goods or services for the purposes of
a business, the provisions of the Consumer Guarantees Act 1993 and the conditions,
warranties and guarantees set out in the Sale of Goods Act 1908 or implied by
common law will not apply and are excluded from these terms of trade.
8.
Customer Warranties
8.1
If you acquire any goods from Aurora Pacific for resupply as, or incorporate or attach
any goods acquired from Aurora Pacific into, goods ordinarily acquired for personal
household or domestic use or consumption (“Consumer Products”) you warrant that:
(a) if you supply the Consumer Products directly to an end user/consumer you will
do so using terms and conditions of supply which exclude liability for any claims
under the Consumer Guarantees Act 1993; and
(b) if your customer acquires the goods for resupply, your customer and each
person in the distribution chain will exclude liability in its contract for supply for
any claims under the Consumer Guarantees Act 1993,
but in each case only where the end user/consumer acquires the Consumer Products
for business purposes.
8.2
You agree to indemnify Aurora Pacific against any failure by you, your customers or
any person in your distribution chain to properly contract out of liability to business end
users/consumers under the Consumer Guarantees Act 1993.
9.
Limitation of liability
9.1
Aurora Pacific will not be liable for any losses of any kind or any delay in supplying
goods which are caused in whole or in part by force majeure including (but not limited
to) any act of God, natural disaster, flood or earthquake, strike, lockout, fire, war, civil
commotion, network service failure, power fluctuations, electricity or gas shortage,
inability to obtain products or supplies including the imposition of any export or import
bans, or any other cause beyond its reasonable control. Aurora Pacific shall not be
required to settle a strike or lockout or other industrial disturbance against its wishes in
order to benefit from this clause.
9.2
Aurora Pacific’s liability to you shall be limited to the amount paid or payable for any
defective goods supplied, and Aurora Pacific, and its employees, contractors and
agents, any manufacturer(s) of the goods or any of their materials or components, will
not be liable to you for loss or damage of any kind however that loss or damage is
caused or arises. This limitation of liability includes, but is not limited to, costs
(including costs of returning goods to Aurora Pacific or to any manufacturer), loss of
data, consequential loss, loss of contracts, loss of profits and damage caused by or
arising from delays in manufacturing or delivery, faulty or delayed installation,
unreasonable use, negligence (including a failure to do something which should have
been done or to prevent something from happening), faulty specifications and design,
and faulty materials or components of the goods.
10.
General Conditions
10.1
Aurora Pacific reserves the right to change these terms of trade from time to time by
notice to you in writing.
10.2
If Aurora Pacific fails to enforce any terms or to exercise its rights under these terms
of trade at any time, Aurora Pacific will not be regarded as waiving those rights.
10.3
If any provision of these terms of trade is held to be invalid or unenforceable for any
reason, the remaining provisions shall remain in full force and effect and the parties
shall adjust their respective rights and obligations in accordance with the spirit and
intent of the parties as shown by these terms of trade.
10.4
Any agreement between you and Aurora Pacific is governed by the laws of New
Zealand. You agree that any dispute is subject to the exclusive jurisdiction of the New
Zealand courts although Aurora Pacific reserves the right to commence any
proceedings against you in any other court.
10.5
Your continued trading with Aurora Pacific indicates your continuing acceptance of
these terms.
