Effective Date: September 2015
In the Terms and Conditions set out below:
AUTEX and we, our or us mean AUTEX INDUSTRIES LIMITED and includes also other entities from time to time in the AUTEX Group;
AUTEX Group means all subsidiaries of AUTEX INTERNATIONAL LIMITED and includes AUTEX INDUSTRIES LIMITED, AUTEX PTY LIMITED, AUTEX ACOUSTICS LIMITED, AUTEX ACOUSTICS NA LIMITED, AUTEX PROPERTIES LIMITED and any other subsidiary;
Terms and Conditions means the Terms and Conditions set out below;
Site means our website www.autex.co.nz and is owned by AUTEX INDUSTRIES LIMITED;
User, you and your mean any user of or visitor to this Site, as applicable.
TERMS AND CONDITIONS
These terms and conditions apply to all supplies of Products (as defined below) made by Autex, with effect from 1 October 2015. They apply until they are formally withdrawn or replaced. These terms and conditions are read subject to expressly agreed terms and conditions of any particular order.
In this document the following defined terms (which are identified by commencing in upper case) have the particular meanings ascribed to them. This is to assist understanding when reading this document:
1.1 “Customer” means any person or organization who or which orders or purchases Products from Autex.
1.2 “Products” means all products manufactured and distributed by Autex which are intended to be sold by Autex or on its behalf.
1.3 “Working Day” means any day which is not a Saturday, a Sunday, Easter or Christmas Day, New Year’s Day or any recognised national holiday in New Zealand or the country where the Products are delivered.
2.1 Orders for Products must be made by a Customer direct to Autex or through an authorised sales agent in writing. Orders may only be made in the manner and following the procedures from time to time stipulated by Autex. If an order is not made in this way Autex may reject the order, without the need to notify the party making the order.
2.2 The date of the order will be the date it is received by Autex in the required manner.
2.3 A legal contract for the supply of Products is created only when an order or quotation is accepted in writing by Autex or a properly authorised sales agent or representative of Autex and by the Customer, as the case may be.
3.1 If Autex provides a quotation for a supply that quotation is valid only for thirty (30) days from and including the day it is sent to the Customer. After this time, if the quotation has not accepted, it is deemed withdrawn.
3.2 Unless otherwise stated in the quotation, the stated price excludes New Zealand Goods and Services Tax, or other sales tax, withholding tax, import or export tax or similar excise or levy applying to the order, which must be paid by the Customer in addition to the quoted price.
3.3 Autex reserves the right to withdraw or alter a quotation at any time before it is accepted, in the event that circumstances beyond its reasonable foreseeability or control affect the cost to Autex of making the supply.
3.4 A quotation is valid only for the Products quoted and any additional Products or incidental services requested will be an additional order, for which the Customer will additionally pay Autex’s stipulated or agreed price.
3.5 A quotation will be deemed accepted only when acceptance is notified to Autex or to its properly authorised sales agent in writing.
4.1 If Products are supplied where no price has been stipulated or agreed the Customer will pay the price (if any) advertised or detailed by Autex or any authorised sales agent in official advertising or promotional material or on an authorised website, and will also pay any related costs or taxes (of the kind described in clause 3.2).
5. Delivery arrangements/ Risk.
5.1 Delivery of the Products ordered will be made according to the timeframes and freight or shipping arrangements provided for in an accepted order or quotation. If any of these things are not specifically agreed then Products will be freighted or shipped to the Customer to their specified address. In the case of export sales Ex Works (Incoterms 2010) apply.
5.2 Risk in the Products will pass at the time agreed, or otherwise, if delivered in New Zealand at the time of delivery or if exported from New Zealand then according to Ex Works (Incoterms 2010).
5.3 Accordingly the Customer must arrange for all, insurance, import duties or taxes, demurrage, storage or freight costs beyond those which Autex is responsible for under these terms and will indemnify Autex (as a debt due to Autex payable upon demand) for any liability it may incur in respect of the order beyond that which it is responsible for.
6. Inspection and Returns.
6.1 The Customer must arrange to inspect the Products when they are delivered or deemed delivered, according to the freight or shipping arrangements agreed. For domestic sales customers must sign a receipt (POD).
6.2 Autex has complete discretion to accept or reject any Customer’s desire to return Products and may specify conditions for accepting returns (such as a restocking fee). Autex will make its assessment regarding returns on a case by case basis. In any event no claim for faulty Products or an error of supply will be accepted if it is not notified in writing to Autex or its authorised sales agent within 7 days after delivery to the Customer. This does not however refer to damage in transit, which is provided for according to the freight or shipping terms applying.
6.3 Autex will not accept returned Products unless they are returned otherwise undamaged, unused and in their original and undamaged packaging.
7.1 Payment for Products supplied must be made in the agreed or stipulated manner no later than the agreed or stipulated time. Unless otherwise agreed or stipulated payment of any invoice must be made in full, without deduction of any kind, in agreed currency and in cleared funds, in the case of domestic sales not later than the 20th day of the month after the month of invoice or in the case of export sales, immediately prior to the time the Bill of Lading is delivered or made available to the Customer or their agent.
7.2 Interest will accrue on any amount payable to Autex for each day that it remains unpaid after the due date, calculated daily at the rate of 15 percent per annum and must be paid upon written demand by Autex. In addition the Customer will reimburse Autex upon demand for any costs it incurs in enforcing any payment or other obligation against the Customer, or in attempting to do so.
8. Security for Payment.
8.1 Except to the extent otherwise provided for in the terms of supply, Autex retains ownership of the Products supplied until all payments then due to Autex, have been irreversibly received by Autex, in full. Until that time the Customer must hold and insure the Products in a manner which protects Autex as unpaid seller.
8.2 If the Products in the meantime are on-sold or become affixed to other goods or property Autex has a right to trace its ownership interest into the proceeds of on-sale (including any mixed fund) and into any new or mixed goods which include these Products.
8.3 The Customer grants to Autex a Purchase Money Security Interest (“PMSI”) (as that term is defined in the Personal Property Securities Act 1999 of New Zealand (“PPSA”)) in the Products that have not been paid for in full and the Customer will do all things required to enable Autex to register, and if necessary enforce, its PMSI.
8.4 The Customer authorises Autex or any agent of Autex to enter any place or premises where it reasonably believes Products which are subject to a PMSI are located. This is for the purposes of inspecting and/or repossessing them if Autex (in its discretion) has concerns about the Products or payment for them.. Autex is not liable for any claim made by or on behalf of the Customer for alleged damage or loss incurred by the exercise of these rights, and the Customer will indemnify Autex for any claim cost or loss it incurs in doing so.
9. Allocation of Moneys Received.
9.1 Autex has a right to allocate any moneys received from the Customer towards any amount then due, and is not obliged to allocate it towards any invoice or amount stipulated by the Customer.
9.2 A payment obligation can only be considered satisfied when Autex has allocated a receipt from the Customer to that obligation.
10. Warranties and Liability.
10.1 Except to the extent otherwise provided in this document, or agreed, Autex warrants that it will supply Products according to the description and specifications recorded in the accepted order or quotation, that the Products supplied will perform as described (but not however that they will be fit for any purpose required by the Customer) that they will be free from material defects, and that, (but subject to clause 8) unencumbered ownership in them will pass to the Customer when they are paid for.
10.2 Except to any extent prohibited by any law that affects a supply of Products to the Customer Autex contracts out of and negates any other implied warranty or liability to the Customer or to any other person claiming in respect of it. The parties contract out of the Sale of Goods Act, the Consumer Guarantees Act and the Fair Trading Act to the maximum extent permitted.
10.3 In respect of any liability Autex has for the supply of Products this is restricted to actual losses or costs suffered by the Customer directly in respect of that supply and Autex is not liable for any claimed consequential losses or loss of profits. The maximum amount that the Customer may claim in any event is limited to the amount invoiced to the Customer in respect of the supply concerned.
10.4 In lieu of payment for a claim Autex has a right instead to resupply the Products concerned.
10.5 In compensating the Customer for any claim Autex has a right to offset and deduct any amount
then owing to Autex by or on behalf of the Customer.
11. Governing Law, Implied Conditions, illegal conditions.
11.1 Except to any extent inconsistent with this document or agreed conditions for any supply of Products the terms and conditions of the United Nations Convention for the International Sale of Goods 1980 are read into them.
11.2 However where any provision requires interpretation or where any dispute arises between Autex and the Customer, the Laws of New Zealand will apply, and where a dispute or difference is to be determined by judicial process, it will be determined by a New Zealand Court. Accordingly the Customer and Autex submit to the non-exclusive jurisdiction of the Courts of New Zealand in these respects.
11.3 If any provision of this document or agreed terms is deemed unenforceable or illegal by a law with jurisdiction over it then, but only to the extent required to prevent the illegality or unenforceability whilst leaving the remaining provisions fully enforceable as they are written, the offending provision will be deemed severed or modified.
12.1 If there is any dispute between Autex and the Customer they will first attempt to resolve it by agreement between them and will not commence legal proceedings until reasonable efforts have been made to reach agreement. In this respect they will act in good faith towards each other to seek a resolution.
12.2 Nothing in this clause however prevents a party enforcing a right or remedy provided for under these terms and conditions, or requiring timely payment of an amount then due.
13.1 Autex has a right to amend or replace these terms and conditions at any time. Amended or replacement terms and conditions will apply from the time that they are notified to the Customer.
13.2 Where any notice or notification is required to be served or given to Autex or to the Customer it must be given in writing and sent to the nominated or otherwise last known address of the recipient, by confirmed email, or if no email address is known or supplied then by confirmed courier.
13.3 If any Force Majeure Event (meaning an “Act of God” or war, civil disruption, strike or lockout or other event outside of a party’s control) prevents Autex or the Customer from performing any obligation, then the time for performing that obligation (but not however for performing any obligation to make a payment) may be enlarged to allow for it to be performed in the manner that it would have been performed but for that event. The Customer acknowledges that unforeseen events, including also by way of example power outages or weather or events, could impact on the timeliness of a delivery.
13.4 No delay in enforcing a right or remedy, nor decision on any occasion not to enforce one, will be interpreted as a waiver of the right to do so, or to do so on another occasion.
13.5 Reference in this document to an authorised sales agent of Autex is only to an agent which is accredited with that status by Autex in any written communication to the Customer, on any website or in any publication.
13.6 Whenever Autex collects personal or other information from a Customer Autex that is affected by Privacy laws Autex is authorised by the Customer to the maximum extent permitted by laws applying, to hold and use that information for its commercial purposes, including communicating with the Customer for any purpose or assessing creditworthiness, and passing the information on to other agencies for similar purposes.