1.1 “AlphaNZ shall mean AlphaNZ Technology Group, or any agents or employees thereof.
1.2 “Customer” shall mean the Customer, any person acting on behalf of and with the authority of the Customer, or any person purchasing products and services from AlphaNZ.
1.3 “Products” shall mean:
1.3.1 all Products of the general description specified on the front of this agreement and supplied by AlphaNZ to the Customer; and
1.3.2 all Products supplied by AlphaNZ to the Customer; and
1.3.3 all inventory of the Customer that is supplied by AlphaNZ; and
1.3.4 all Products supplied by AlphaNZ and further identified in any invoice issued by AlphaNZ to the Customer, which invoices are deemed to be incorporated into and form part of this agreement; and
1.3.5 all Products that are marked as having been supplied by AlphaNZ or that are stored by the Customer in a manner that enables them to be identified as having been supplied by AlphaNZ; and
1.3.6 all of the Customer’s present and after-acquired Products that AlphaNZ has performed work on or to or in which goods or materials supplied or financed by AlphaNZ have been attached or incorporated.
1.3.7 The above descriptions may overlap but each is independent of and does not limit the others.
1.4 “Products” shall also mean all products, goods, services and advice provided by AlphaNZ to the Customer and shall include without limitation the supply of all products and all charges for labour, hire charges, insurance charges, or any fee or charge associated with the supply of Products by AlphaNZ to the Customer.
1.5 “Price” shall mean the cost of the Products as agreed between AlphaNZ and the Customer and includes all disbursements e.g. charges AlphaNZ pay to others on the Customer’s behalf subject to Price clause of this contract.
2.1 Any instructions received by AlphaNZ from the Customer for the supply of Products shall constitute a binding contract and acceptance of the terms and conditions contained herein.
3.1 AlphaNZ shall, without any liability, and without any prejudice to any other right it has in law or equity, have the right by notice to suspend or cancel in whole or in part any contract for the supply of Products to the Customer if the Customer fails to pay any money owing after the due date or the Customer commits an act of bankruptcy as defined in section 19 of the Insolvency Act 1967.
3.2 Any cancellation or suspension of this agreement shall not affect AlphaNZ’ claim for money due at the time of cancellation or suspension or for damages for any breach of any terms of this contract or the Customer’s obligations to AlphaNZ under this contract.
4.1 The Customer authorises AlphaNZ to collect, retain and use any information about the Customer, for the purpose of assessing the Customer’s credit worthiness, enforcing any rights under this contract, or marketing any Products provided by AlphaNZ to any other party.
4.2 The Customer authorises AlphaNZ to disclose any information obtained to any person for the purposes set out in clause 4.1.
4.3 Where the Customer is a natural person the authorities under clauses 4.1 and 4.2 are authorities or consents for the purposes of the Privacy Act 1993.
5.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires Products from AlphaNZ for the purposes of a business in terms of section 2 and 43 of that Act.
6.1 No claim relating to the Products will be considered unless made within seven (7) days of delivery.
6.2 No Products will be accepted for return without prior approval of AlphaNZ Technology Group. A 10% restocking fee may apply. Any Products considered for return must be in original packaging, unopened and undamaged.
7.1 The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon AlphaNZ which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on AlphaNZ, AlphaNZ’ liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.
7.2 Except as otherwise provided by clause 7.1 AlphaNZ shall not be liable for:
7.2.1 Any loss or damage of any kind whatsoever, arising from the supply of Products by AlphaNZ Technology Group to the Customer including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Products provided by AlphaNZ to the Customer; and
7.2.2 The Customer shall indemnify AlphaNZ against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of AlphaNZ or otherwise, brought by any person in connection with any matter, act, omission, or error by AlphaNZ its agents or employees in connection with the Products.
7.3 In the event that AlphaNZ is deemed to be liable for a product or service rendered then the limitation of liability will be no greater than the value of products and services paid for by the customer within the month that pertains to that incident.
7.4 If a remedy is sort and agreed to in line with clause 7.3 by AlphaNZ then our maximum recovery by the customer is a refund of the fee charged or the responsibility of AlphaNZ to put it right. Where the service is on-going the recovery will be limited to the service fee charged for that service in the month the disputed occurred. The choice of remedy is at AlphaNZ discretion and is without any admission of Liability.
8.1 AlphaNZ Technology Group shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.
8.2 Failure by AlphaNZ to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations AlphaNZ has under this contract.
8.3 If any provision of this contract shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
8.4 The terms and conditions shall be interpreted and governed by the law of New Zealand.
9.1 Payment for Products shall be made in full on or before the 20th day of the month following the date of the invoice (“the due date”) or soon if required.
9.2 Interest may be charged on any amount owing after the due date at the rate of 2.5% per month or part month.
9.3 Any expenses, disbursements and legal costs incurred by AlphaNZ in the enforcement of any rights contained in this contract shall be paid by the Customer, including any reasonable solicitor’s fees or debt collection agency fees.
9.4 Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
10.1 AlphaNZ may in its discretion allocate any payment received from the Customer towards any invoice that AlphaNZ determines and may do so at the time of receipt or at any time afterwards and on default by the Customer may reallocate any payments previously received and allocated. In the absence of any payment allocation by AlphaNZ, payment shall be deemed to be allocated in such manner as preserves the maximum value of AlphaNZ’ purchase money security interest in the Products.
11.1 If the Customer is a company or trust, the director(s) or trustee(s) signing this contract, in consideration for AlphaNZ agreeing to supply Products and grant credit to the Customer at their request, also sign this contract in their personal capacity and jointly and severally personally undertake as principal debtors to AlphaNZ the payment of any and all monies now or hereafter owed by the Customer to AlphaNZ and indemnify AlphaNZ against non-payment by the Customer. Any personal liability of a signatory hereto shall not exclude the Customer in any way whatsoever from the liabilities and obligations contained in this contract. The signatories and Customer shall be jointly and severally liable under the terms and conditions of this contract and for payment of all sums due hereunder.
12.1 Where no price is stated in writing or agreed to orally the Products shall be deemed to be sold at the current amount as such Products are sold by AlphaNZ at the time of the contract.
12.2 The price may be increased by the amount of any reasonable increase in the cost of supply of the Products that is beyond the control of AlphaNZ between the date of the contract and delivery of the Products.
12.3 All pricing is in New Zealand Dollars and shall be exclusive of goods and services tax unless specifically stated to the contrary;
13.1 Where a quotation is given by AlphaNZ for Products:
13.1.1 Unless otherwise agreed the quotation shall be valid for thirty (30) days from the date of issue; and
13.1.2 AlphaNZ reserve the right to alter the quotation because of circumstances beyond its control.
13.2 Where Products are required in addition to the quotation the Customer agrees to pay for the additional cost of such Products.
14.1 No provision in this agreement will be construed to express or imply a joint venture, partnership, or a relationship other than vendor and purchaser of goods and services.
14.2 No employee, agent or other representative of ether party will at any time be deemed to be under the control or authority of the other party, or under joint control of both parties.
15.1 The Products remain at AlphaNZ’ risk until delivery to the Customer.
15.2 Delivery of Products shall be deemed complete when AlphaNZ gives possession of the Products directly to the Customer or possession of the Products is given to a carrier, courier, or other bailee for purposes of transmission to the Customer.
15.3 The time agreed for delivery shall not be an essential term of this contract.
16.1 Title in any Products supplied by AlphaNZ passes to the Customer only when the Customer has made payment in full for all Products provided by AlphaNZ and of all other sums due to AlphaNZ by the Customer on any account whatsoever. Until all sums due to AlphaNZ by the Customer have been paid in full, AlphaNZ has a security interest in all Products.
16.2 If the Products are attached, fixed, or incorporated into any property of the Customer, by way of any manufacturing or assembly process by the Customer or any third party, title in the Products shall remain with AlphaNZ until the Customer has made payment for all Products, and where those Products are mixed with other property so as to be part of or a constituent of any new Products, title to these new Products shall deemed to be assigned to AlphaNZ as security for the full satisfaction by the Customer of the full amount owing between AlphaNZ and Customer.
16.3 The Customer gives irrevocable authority to AlphaNZ to enter any premises occupied by the Customer or on which Products are situated at any reasonable time after default by the Customer or before default if AlphaNZ believes a default is likely and to remove and repossess any Products and any other property to which Products are attached or in which Products are incorporated. AlphaNZ shall not be liable for any costs, damages, expenses or losses incurred by the Customer or any third party as a result of this action, nor liable in contract or in tort or otherwise in any way whatsoever unless by statute such liability cannot be excluded. AlphaNZ may either resell any repossessed Products and credit the Customer’s account with the net proceeds of sale (after deduction of all
repossession, storage, selling and other costs) or may retain any repossessed Products and credit the Customer’s account with the invoice value thereof less such sum as AlphaNZ reasonably determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs.
16.4 Where Products are retained by AlphaNZ pursuant to clause 16.3 the Customer waives the right to receive notice under s.120 of the Personal Property Securities Act 1999 (“PPSA”) and to object under s.121 of the PPSA.
16.5 The following shall constitute defaults by the Customer:
16.5.1 Non-payment of any sum by the due date.
16.5.2 The Customer intimates that it will not pay any sum by the due date.
16.5.3 Any Products are seized by any other creditor of the Customer or any other creditor intimates that it intends to seize Products.
16.5.4 Any Products in the possession of the Customer are materially damaged while any sum due from the Customer to AlphaNZ remains unpaid.
16.5.5 The Customer is bankrupted or put into liquidation or a receiver is appointed to any of the Customer’s assets or a landlord distrains against any of the Customer’s assets.
16.5.6 A Court judgment is entered against the Customer and remains unsatisfied for seven (7) days.
16.5.7 Any material adverse change in the financial position of the Customer.
17.1 Manufacturer’s warranty applies where applicable.
Dated: April 2013 – AlphaNZ Technology Group – Version 1304/1
Head Office (Porirua)
04 910 1153
2 Raiha Street