VPNZ (Vacuum Pumps NZ Ltd) Terms and Conditions of Equipment Sale (the “Sale Conditions”)
1.1 In these Sale Conditions: “Equipment” means hardware, equipment, other tangible items, machinery and parts (or any of them) and consists of Standard Equipment and Non-standard Equipment, “Standard Equipment” means Equipment described in published catalogues, “Non-standard Equipment” means other Equipment adapted or made to Buyer’s requirement, references to “Buyer” shall mean the party buying Equipment and shall include, if the context so permits, its agents or sub-contractors and references to “Seller” shall mean VPNZ (Vacuum Pumps NZ Ltd) and “Purchase Order” shall mean an order for Equipment placed on Seller by Buyer.
1.2 These Sale Conditions apply to and are deemed to be incorporated in all contracts for Equipment and, save where Seller and Buyer have agreed to specific terms, shall apply to and prevail over all conditions (if any) endorsed on, delivered with or contained in Buyer’s purchase terms, or any Purchase Order, acceptance or acknowledgement of these Sale Conditions, specifications or similar documents. Seller’s Terms and Conditions of Equipment Service apply to all contracts for services.
1.3 No modification to these Sale Conditions or representations about the Equipment shall be valid unless in writing and duly signed by a person authorised by Seller.
1.4 These Sale Conditions shall not be supplemented by any trade usage or any course of prior dealings or acquiescence in any course of performance.
- OFFER AND ACCEPTANCE
2.1 All Purchase Orders are subject to acceptance by Seller. Seller reserves the right to accept or reject any Purchase Order in whole or in part and to submit counter-offers consisting of additional or different terms and conditions, including those contained in these Sale Conditions, (“Counter-offer”) to Buyer.
2.2 Acceptance of a Purchase Order will normally be advised by Seller within thirty (30) days of receipt. No obligation shall be binding on Seller unless and until the Purchase Order is accepted by Seller in writing or, if earlier, Equipment is supplied to Buyer.
2.3 Any acceptance by Seller of a Purchase Order is made conditional upon Buyer’s acceptance of any Counter-offer. Buyer may accept a Counter-offer by written acknowledgement, acceptance of, or payment for, Equipment or in any other fashion. Buyer shall be deemed to have accepted any Counter-offer unless Buyer rejects such in writing within ten (10) days of Buyer’s receipt of the Counter-offer.
2.4 The acceptance by Buyer of a Counter-offer shall revoke any provision in the Purchase Order or other Buyer documentation that purports to limit or restrict any such acceptance. Buyer agrees that Seller’s failure to object specifically to any such terms or conditions shall not constitute an acceptance by Seller thereof nor shall it constitute an acceptance by Seller of any waiver of, or modification to, these Sale Conditions.
2.5 Once accepted the Purchase Order or the Counter-offer and, in either case, these Sale Conditions shall constitute the contract (“Contract”) between Buyer and Seller for Equipment.
- PRICE QUOTATIONS
3.1 Prices quoted for (a) Standard Equipment remain valid for thirty (30) days unless otherwise specified; and (b) Non-standard Equipment are estimates and may be increased without notice in the event of increases in Seller’s costs of: (i) transport, labour and materials; (ii) handling of, and compliance with laws and regulations concerning hazardous materials; (iii) handling, delivery and shipping; (iv) energy or fuel; and/or (v) any other costs of supply or of Seller’s performance arising between the time of quotation and the time of supply.
3.2 Prices quoted are exclusive of all applicable taxes, including but not limited to, any value added tax, Federal, state and/or municipal excise, sales and/or use taxes, levies and duties of any nature whatsoever (“Taxes”) applicable to the Equipment.
3.3 All Taxes shall be paid by Buyer unless Buyer provides Seller with an exemption certificate acceptable to the relevant taxing authority.
- INSPECTION AND TESTING
4.1 All Equipment is inspected by Seller before supply to Buyer and tested where appropriate.
4.2 An additional charge will be made for tests or trial runs carried out at Buyer’s request. In the event that Buyer does not attend such tests, after fourteen (14) days’ notice, Seller will perform the tests and the Equipment will be deemed accepted in Buyer’s absence.
5.1 Any dates specified by Seller for the delivery of Equipment are intended to be estimates only. However, Seller will use reasonable efforts to supply Equipment within the time requested in the Purchase Order and in any event within a reasonable period. Subject to the other provisions of these Sale Conditions, Seller will not be liable for any losses, costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Equipment (even if caused by Seller’s negligence) and nor will any delay entitle Buyer to terminate or rescind the Contract, unless such delay exceeds 30 days.
5.2 Unless otherwise agreed in writing, all shipments shall be made Ex-Works (as defined in Incoterms 2000) Seller’s production and/or distribution facilities as may be specified by Seller from time to time. If other delivery arrangements are agreed, Seller may, at Buyer’s request and expense, arrange carriage and insure Equipment against normal transit risks to the value of the purchase price. Risk of damage to or loss of Equipment shall pass to Buyer on collection from Sellers’ works. Buyer shall indemnify and hold Seller harmless against all loss of, or damage to, Equipment from whatsoever cause occurring.
5.3 If Seller arranges transportation of Equipment for Buyer, in the event of loss of, or damage to, Equipment, whether or not caused by Seller’s or its chosen carrier’s negligence or that of any other person, Seller’s liability shall be limited to replacement of product or the value of the insurance claim whichever is of lesser value.
5.4 Buyer will supply Seller with delivery instructions promptly on notification to Buyer that Equipment is ready for shipment. If appropriate delivery instructions, documents, licences or authorisations are not received or if Buyer requests for a shipment to be postponed for more than ten (10) days after the date Buyer is notified that the Equipment is ready for shipment, Seller shall be entitled to make arrangements for storage of the Equipment at Buyer’s risk and expense and to charge Buyer accordingly. In such case, Seller’s obligation to deliver the Equipment will be deemed satisfied and Buyer will become responsible for the risk of loss of or damage to the Equipment and for paying the purchase price.
5.5 Equipment will be supplied as available, unless Buyer specifically requests “one consignment”. Each shipment shall be considered a separate and independent transaction. These Sale Conditions shall apply separately for each shipment and Seller shall have the right to separately invoice Buyer after each such partial shipment without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Buyer of its obligations to accept remaining deliveries.
5.6 Seller may suspend shipment of any unfulfilled Contract in the event of any act or omission on the part of Buyer or if Buyer is in material breach of Buyer’s obligations under the Contract.
5.7 All Equipment supplied to the destination notified by Buyer will be deemed accepted unless Buyer promptly notifies Seller in writing that it is not in compliance with the Contract or specification. Damaged Equipment and packaging must be kept for inspection by Seller and/or the carrier. 5.8 Seller may modify the specification of Equipment without notice provided that the modification will not materially affect the performance, form or fit of the affected Equipment.
5.9 Unless otherwise agreed in writing, installation and commissioning is not included in the purchase price for the Equipment.
6.1 All amounts are stated and payments are to be made in New Zealand Dollars (NZD) unless otherwise agreed in writing.
6.2 If Buyer specifies a currency other than New Zealand Dollars (NZD), Seller reserves the right to amend the quoted price by any amount to cover movements in the exchange rate between the currency of the quotation and New Zealand Dollars (NZD) arising between the time of quotation and acceptance of the Purchase Order.
6.3 Full payment, without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless Buyer has a valid court order requiring an amount equal to such deduction to be paid by Seller to Buyer, must be made to Seller within 20th month following the date of invoice, unless otherwise agreed in writing. Invoices will normally be issued on the date of delivery of the Equipment Ex Works or on the date on which Buyer becomes responsible for the risk of loss of, or damage to, uncollected Equipment. Invoice disputes must be raised by Buyer to Seller within fifteen (15) days from date of invoice. If no dispute is raised within such fifteen (15) day period the invoice shall be considered to be accepted by Buyer.
6.4 Time for payment shall be of the essence.
6.5 All Purchase Orders are subject to credit approval before shipment. If, in Seller’s judgement, Buyer’s financial condition does not, at any time, justify payment terms as previously specified, Seller may cancel or suspend any unfulfilled Contract. In such circumstances Seller may permit Buyer, upon written notice, immediately to pay for any Equipment to be shipped.
6.7 If, despite any default by Buyer, Seller elects to continue to make shipments of Equipment, Seller’s action in so doing shall not constitute Seller’s waiver of any default by Buyer or in any way prejudice Seller’s legal remedies for such default.
- RETENTION OF TITLE
7.1 Equipment shall remain Seller’s property until Buyer has made full and unconditional payment to Seller of all sums due to it in respect of the Equipment.
7.2 Until payment in full by Buyer, Equipment shall be held by Buyer as bailee for Seller and will be kept (at no cost to Seller) separately from all other goods of Buyer or any third party in such a way that they remain readily identifiable as Seller’s property and Buyer shall not destroy, deface or obscure any identifying mark or packaging on or relating to the Equipment.
7.3 If payment becomes overdue, or on the occurrence of any termination event referred to in Condition 13 below, Seller may, where permitted by law and after giving notice to Buyer, enter upon any premises in Buyer’s control where Seller reasonably believes Equipment to be, or otherwise take action, to recover Equipment.
7.4 Prior to full payment of the purchase price, Buyer shall maintain the Equipment in satisfactory condition and keep insured Equipment shipped to Buyer by Seller under policies with such provisions, for such amounts and with such insurers as shall be satisfactory to Seller and shall hold the proceeds of the insurance in trust for Seller and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
- INTELLECTUAL PROPERTY
8.1 Seller shall retain all right, title and interest in and to, and possession of, any know how, technical information, drawings, specifications or documents, ideas, concepts, methods, processes, techniques and inventions developed or created by or on behalf of Seller and supplied by Seller under any Contract. All such information shall be kept confidential by Buyer and shall not be disclosed to any third party unless and until the same is or becomes public knowledge nor shall any such information be used by Buyer for any purpose other than for the purpose of using the Equipment without Seller’s prior written consent.
8.2 Ownership is retained by Seller of any patent, copyright, trade secret, design right or other intellectual property right in or relating to the Equipment and Buyer shall acquire no rights in or over such intellectual property rights save as expressly set out herein including, but not limited to, any technical information, know how, drawings and specifications supplied by Seller or relating to Equipment.
8.3 Seller’s trademarks and names and those of its associated companies shall not be used otherwise than as applied by Seller to Equipment or associated documentation.
9.1 Seller hereby undertakes to repair or replace at Seller’s option, or to arrange repair or replacement by Seller’s representative of, any Equipment supplied to Buyer if a defect in materials or workmanship arises under conditions of normal and proper use and maintenance (fair wear and tear, and consumables excepted and excluding labour) provided that: a) the Equipment was purchased and used for a purpose for which it was suitable, was operated and maintained in accordance with the operating instructions, and was not used in a way which was unsuitable; b) the claim is first notified promptly in writing to Seller; c) unless otherwise agreed, or specified by Seller, in writing, the defect occurs within twelve months from the date of shipment of the Equipment; d) the Equipment has not been repaired or modified by anyone other than Seller or at Seller’s direction; e) in the case of Equipment or parts not of Seller’s own manufacture, unless otherwise required by law, Seller’s responsibility shall be limited to passing on to Buyer the benefit of any guarantee or warranty given to Seller by the manufacturer of such Equipment or part; f) in the case of a replacement, Buyer returns, at its cost, the defective Equipment, which is being or has been replaced, to Seller within ten (10) days of delivery of the replacement Equipment by Seller. g) The defect does not arise from Buyer’s specification or instructions; and h) Buyer has paid the purchase price for the Equipment in full.
9.2 Any repaired or replaced Equipment will continue to be warranted for the unexpired period of the warranty referred to in Condition 9.1 above.
9.3 Seller may charge Buyer for the costs of shipping Equipment to and from a VPNZ Service Centre if the Equipment to be repaired or replaced is located in city in which VPNZ does not have a Branch.
9.4 Failing satisfactory repair or replacement, Seller may satisfy Seller’s liability under this Condition 9 by reducing the purchase price or refunding the purchase price and retaking the Equipment.
- LIABILITY AND INDEMNIFICATION
10.1 SUBJECT TO CONDITION 9, THE FOLLOWING PROVISIONS SET OUT THE ENTIRE LIABILITY OF SELLER (INCLUDING ANY LIABILITY FOR THE ACTS OR OMISSIONS OF ITS EMPLOYEES, AGENTS, OR SUBCONTRACTORS) TO BUYER IN RESPECT OF:
(A) ANY BREACH OF THESE SALE CONDITIONS; OR
(B) ANY REPRESENTATION, STATEMENT OR TORTIOUS ACT OF OMISSION INCLUDING NEGLIGENCE ARISING UNDER OR IN CONNECTION WITH THESE SALE CONDITIONS.
10.2 NOTHING IN THESE SALE CONDITIONS EXCLUDES OR LIMITS THE LIABILITY OF SELLER FOR:
(A) DEATH OR PERSONAL INJURY CAUSED BY SELLER’S NEGLIGENCE OR FRAUDULENT MISREPRESENTATION; OR
(B) PHYSICAL DAMAGE TO PROPERTY TO THE EXTENT THAT IT RESULTS FROM BREACH OF CONTRACT OR SELLER’S NEGLIGENCE IN CONNECTION WITH THE PERFORMANCE OF THE CONTRACT, SUBJECT TO AN OVERALL LIMIT OF THE AMOUNT RECEIVED BY SELLER FROM BUYER UNDER THE CONTRACT.
10.3 SUBJECT TO CONDITIONS 9.5 AND 10.2;
(A) SELLER SHALL HAVE NO LIABILITY IN:
(ii) TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY);
(iv) RESTITUTION; OR OTHERWISE ARISING IN CONNECTION WITH THE PERFORMANCE OR CONTEMPLATED PERFORMANCE OF THESE SALE CONDITIONS; AND (B) SELLER SHALL NOT BE LIABLE TO BUYER FOR:
- PERSONAL INJURY (SO FAR AS NOT CAUSED BY SELLER’S NEGLIGENCE);
- (II) DAMAGE TO TANGIBLE PROPERTY (SO FAR AS NOT CAUSED BY SELLER’S NEGLIGENCE);
- (III) PURE ECONOMIC LOSS;
- (IV) LOSS OF PROFIT;
- (V) LOSS OF BUSINESS;
- (VI) DEPLETION OF GOOD WILL;
OR OTHERWISE, IN EACH CASE WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL, OR ANY CLAIMS FOR CONSEQUENTIAL COMPENSATION WHATSOEVER (HOWSOEVER CAUSED) WHICH ARISE OUT OF OR IN CONNECTION WITH THESE SALE CONDITIONS.
10.4 NO ACTION OR SUIT SHALL BE BROUGHT BY BUYER AGAINST SELLER FOR DAMAGES ARISING OUT OF THE PURCHASE, MANUFACTURE, USE, DELIVERY (INCLUDING LATE DELIVERY), OR TRANSPORTATION OF EQUIPMENT, WHETHER SUCH SUIT OR ACTION IS FOR BREACH OF CONTRACT, BREACH OF WARRANTY, TORT OR OTHERWISE, UNLESS SUCH ACTION IS COMMENCED WITHIN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED. NO SUIT, ACTION OR CLAIM SHALL BE MADE OR FILED AGAINST SELLER BY BUYER UNLESS BUYER HAS PAID AT THE TIME THE CLAIM IS MADE, OR THE SUIT OR ACTION IS FILED, THE ENTIRE PURCHASE PRICE OR ALL INSTALLMENTS THEREON, IN STRICT ACCORDANCE WITH THE TERMS OF THESE SALE CONDITIONS, AND FAILURE TO MAKE SUCH PAYMENT SHALL BE AN ABSOLUTE DEFENCE TO ANY SUCH SUIT, ACTION OR CLAIM. IF BUYER FAILS TO PERFORM ANY OF ITS OBLIGATIONS PURSUANT TO THESE SALE CONDITIONS, BUYER SHALL PAY SELLER ALL COSTS AND EXPENSES INCURRED BY SELLER, INCLUDING ALL ATTORNEY’S FEES, IN ENFORCING SELLER’S RIGHTS RELATING TO SUCH OBLIGATION, WHETHER BY FORMAL PROCEEDINGS OR OTHERWISE, IN ADDITION TO ANY OTHER REMEDY AVAILABLE TO SELLER.
10.5 SUBJECT TO CONDITIONS 9, 10.2 AND 10.3 BUYER WILL INDEMNIFY AND KEEP INDEMNIFIED SELLER FROM AND AGAINST ANY COSTS, CLAIMS, DEMANDS, LIABILITIES, DAMAGES OR LOSSES AND ALL INTEREST, PENALTIES AND LEGAL AND OTHER PROFESSIONAL COSTS AND EXPENSES ARISING OUT OF OR IN CONNECTION WITH BUYER’S USE OF EQUIPMENT OR BUYER SUPPLYING EQUIPMENT TO ANY PARTY WHO IS NOT A PARTY TO THESE SALE CONDITIONS AND THE EQUIPMENT’S SUBSEQUENT USE. THIS INDEMNITY SHALL COVER (BUT IS NOT LIMITED TO) SELLER’S LIABILITY TO THIRD PARTIES ARISING OUT OF THE USE OR SALE OF THE EQUIPMENT, EXCEPT TO THE EXTENT CAUSED BY SELLER’S NEGLIGENCE.
10.6 Buyer shall use its best endeavours to ensure that in any agreement for the resale of Equipment which is the subject of these Sale Conditions, a clause is included which protects Seller from claims from Buyer’s customer and that Buyer obtains an indemnity from Buyer’s customer in favour of Seller in substantially the same and, in any event, no less protective form, than Condition 10 governs Seller’s relationship with Buyer. Buyer shall indemnify Seller against all costs, claims, demands, liabilities, expenses, damages or losses arising out of or in connection with any failure by Buyer to include such a clause.
- FORCE MAJEURE
11.1 Neither Buyer nor Seller shall be liable for failures in performance, including delay or non-shipment, resulting from acts or events beyond its reasonable control.
11.2 Such acts or events shall include, but shall not be limited to, acts of God, civil or military authority, civil disturbance, fire, strikes, lockouts or slowdowns, factory or labour conditions, inability to obtain necessary labour, materials or manufacturing facilities, delayed issuance of export control licences, or other “force majeure” events beyond the reasonable control of the non-performing party.
11.3 In the event of such delay, the date of shipment shall, at the request of Seller, be deferred for a period equal to the time lost by reason of the delay and otherwise for a reasonable time.
12.1 No Contract may be cancelled or altered by Buyer except upon terms and conditions acceptable to Seller.
12.2 Unless otherwise agreed in writing, should Buyer cancel any Contract, Buyer shall be liable for the costs of all work done and materials purchased or provided up to the time of cancellation plus a charge for overhead and loss of profit. If Equipment has been shipped to Buyer, Buyer shall return the Equipment, at Buyer’s expense, to Seller in the same condition as shipped.
13.1 If Buyer commits any act of bankruptcy or, being a company, has a receiver appointed or an administration order made against it or goes into liquidation or if a similar event occurs under applicable insolvency laws (except for the purpose of reconstruction or amalgamation) then all sums due to Seller under the Contract shall immediately become due and payable and Seller may, notwithstanding any previous waiver, terminate the Contract forthwith by written notice.
13.2 Seller may terminate the Contract on seven (7) days’ prior written notice to Buyer in the event of a failure by Buyer to comply with any material provision of these Sale Conditions, if the failure continues for more than fourteen (14) days after Buyer has been given written notice of such failure.
13.3 If Buyer fails to pay the purchase price within 20th month following the date of invoice or Buyer fails to collect Equipment within thirty (30) days of Seller’s notice, Seller shall be entitled, without prejudice to its other rights, to terminate the Contract and to dispose of the Equipment.
13.4 Termination shall be without prejudice to any prior right of either party.
14.1 Buyer may neither assign nor transfer its rights under the Contract, by operation of law or otherwise, without the prior written consent of Seller. Seller’s affiliated companies may participate in Seller’s performance under these Sale Conditions, and Seller shall have the right to sub-contract its obligations under these Sale Conditions provided that Seller shall remain liable to Buyer for Seller’s obligations under these Sale Conditions.
14.2 Save as expressly provided; no term or provision of these Sale Conditions shall be enforceable by a third party (being any person other than the parties and their permitted successors and assignees).
14.3 In the event that any term or provision of these Sale Conditions is declared null and void or unenforceable by any court of competent jurisdiction, the remainder of the provisions of these Sale Conditions shall remain in full force and effect to the fullest extent permitted by applicable law.
14.4 The Contract and these Sale Conditions constitute the entire agreement between Seller and Buyer relating to the purchase and sale of Equipment. These Sale Conditions shall inure to the benefit of and shall be binding upon Seller and Buyer and their respective successors and assigns, including any entity with which either party may merge or consolidate or to whom either party may transfer assets comprising the Equipment.
14.5 Seller and Buyer each acknowledge that they have read and understand the terms and provisions of these Sale Conditions and have had an opportunity to have the same reviewed by an attorney of their choice.
14.6 Buyer represents that the person placing the Purchase Order and accepting any Counter-offer on Buyer’s behalf has the full authority to do so.
14.7 No waiver by either party of any breach of any of these Sale Conditions by the other party shall be deemed to constitute a waiver of any other breach nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy hereunder operate as a waiver thereof. A waiver given by a party hereunder shall be binding upon such party only if in writing and signed by such party.
14.8 Nothing contained in these Sale Conditions shall be deemed to require Seller to take any action that would constitute, directly or indirectly, a violation of any laws of any applicable jurisdiction, and Seller’s failure to take any such action shall not be deemed a breach hereunder.
14.9 All drawings, descriptive matter, technical specifications, capacities, performance rates, descriptions and other particulars given in respect of any Equipment (whether in catalogues or advertisements or accompanying or referred to in the Contract) are stated by Seller in good faith based on Seller’s experience as being correct within acceptable tolerances but are not binding in detail and do not form part of the Contract unless specifically stated to do so. In the absence of any special arrangements to the contrary, it is Buyer’s responsibility to ensure that Equipment ordered is sufficient and suitable for Buyer’s purposes.
14.10 Buyer hereby acknowledges that relevant safety and training literature relating to the Equipment will be supplied by Seller to Buyer free of charge and may be photocopied by Buyer as required. Buyer shall be fully responsible for the implementation of the contents of all safety and training literature provided to Buyer by Seller. Buyer shall ensure that persons, who use, maintain or otherwise handle Equipment receive adequate safety and training literature. Copies of Safety literature are available upon request from Seller free of charge, and may be photocopied by Buyer as required.
- GOVERNING LAW AND DISPUTE RESOLUTION
15.1 The Contract shall be governed by and construed in accordance with the laws of New Zealand.
15.2 Buyer and Seller agree that the courts of New Zealand shall have the exclusive jurisdiction to settle any disputes which may arise in connection with the Contract.
15.3 Seller shall have the option to bring suit before the Courts of the domicile of Buyer when the claim is for or related to payments due from Buyer.