Terms of Trade
Barcode Products Limited – Standard Terms and Conditions of Sale
(1) These Terms and Conditions of Sale (“Conditions”) are not intended and do not exclude any rights conferred upon the Purchaser by the Consumer Guarantees Act 1993. (2) Acceptance by Barcode Products Limited of a credit account with the Purchaser constitutes acceptance by the Purchaser of these Conditions and these Conditions shall apply unless they are varied in writing and executed by a duly authorised officer of Barcode Products Limited. (3) These Conditions and the details on the face of any invoice together with any specifications attached thereto shall constitute the contract (“the Contract”) entered into by Barcode Products Limited and the purchaser of the goods specified in the Contract (“the Goods”). The Contract shall constitute a complete agreement between Barcode Products Limited and the Purchaser and supersedes all other discussions and representations between the parties either written or oral. In the event of there being the inconsistency between the Contract and anything contained in the Purchaser’s purchase or order forms or other documentation the terms of the Contract shall apply.
All goods sold pursuant to these Conditions shall be deemed to be in accordance with the specifications in the Contract provided however the Purchaser shall be entitled within 14 days after delivery of the goods to give written notice to Barcode Products Limited of any failure of the goods to comply with the specifications including the particulars of all alleged breaches of the specifications. Barcode Products Limited shall address the alleged breach of the specifications within a reasonable time having regard to all the circumstances.
Delivery dates in the Contract are estimated dates of arrival made in good faith by Barcode Products Limited and Barcode Products Limited shall have no liability in respect of any claim for damages, losses, costs or expenses of any nature whatsoever arising directly or indirectly from non-delivery or delay in delivery or any failure to perform or delay in performing any of Barcode Products Limited’ obligations due to any cause outside Barcode Products Limited’ reasonable control and in the event of non-delivery or delay then the date of delivery shall be extended for a period equal to the time lost by reason of the delay.
4. Force Majeure
If Barcode Products Limited or the Purchaser fail to perform any obligation imposed on it under this Contract and any such failure shall be caused by acts of God, strikes, lockouts or other industrial disturbances, civil disturbances, or the order of any Court or Government authority, prohibition or restraint on imports or export by any Governmental or other appropriate authority or any other act or omission occasioned by any cause beyond the control of the party invoking this clause then that failure shall not give rise to any cause of action based on a breach of the obligation of such party hereunder but such party shall use reasonable diligence to put itself again in a position to carry out its obligations under this Contract. The party affected shall give prompt notice to the other of the commencement of such suspension and also of when it ceased to have the effect provided nothing in this clause shall oblige Barcode Products Limited or the Purchaser from settling a strike when in their judgment it would be adverse to their commercial interest to do so.
5. Retention of Title
(1) Property in the goods, the subject of this Contract shall not pass until the Purchaser has paid all monies owing by the Purchaser to Barcode Products Limited and until that time the Purchaser shall hold the goods as a bailee and store and identify the goods in such a way that they can be clearly identified as the property of Barcode Products Limited and maintain the goods in good order and condition and return the goods to Barcode Products Limited immediately if required so to do by written notice from Barcode Products Limited. (2) Before property in the goods passes to the Purchaser and provided the Purchaser is not in default of any of its obligations under the Contract, the Purchaser shall be entitled as agent for Barcode Products Limited to sell the goods in the normal course of its business provided that the Purchaser shall: (a) Account to Barcode Products Limited for all proceeds derived from any such sale and deposit the proceeds from any such sale so as to identify them as the property of Barcode Products Limited (b) Hold all rights against the purchaser of any such goods in respect of any non-payment by those purchasers for the goods in trust for Barcode Products Limited and assign to Barcode Products Limited such rights if called upon so to do by Barcode Products Limited. (3) Before property in the goods passes to the Purchaser, the Purchaser shall not be entitled to intermingle the goods with any other objects or otherwise deal with the goods so they become a part of any other object without the prior written consent of Barcode Products Limited. In the event of Barcode Products Limited consenting to the intermingling of the goods then the Purchaser shall be deemed to do so as agent of Barcode Products Limited and the Purchaser shall account to Barcode Products Limited for that part of the proceeds derived from the sale of such new objects as relate to the amounts owing to the Purchaser in respect of the goods which form part of the new objects. The Purchaser shall deposit such part of the proceeds from such sales so as to clearly identify them as the property of Barcode Products Limited and shall hold such part of the proceeds in trust for Barcode Products Limited.
Cancellation or variation of the undelivered part of the scheduling order will only be accepted by Barcode Products Limited if it is indemnified by the Purchaser in respect of all costs and all losses consequently incurred by Barcode Products Limited excluding indirect costs.
7. Manufacturer’s Warranty
Barcode Products Limited will extend any manufacturer’s warranty to the Purchaser so far as such benefit is legally assignable by Barcode Products Limited.
The liability of Barcode Products Limited whether in contract or in tort for any loss, damage or injury arising directly or indirectly from any defect or non-compliance with the goods supplied is limited to replacement or repair of such goods or damages not exceeding the invoice value of such defective or non-complying goods at the option of Barcode Products Limited. Barcode Products Limited shall not be liable for any consequential or indirect or special damage or loss of any kind whatsoever. The Purchaser shall indemnify Barcode Products Limited against any claims by any persons whomsoever in respect of any loss, damage or injury arising from any defect or non- compliance of the goods supplied to the Purchaser. To the fullest extent permitted by law the Purchaser acknowledges and agrees that Barcode Products Limited shall have no liability to the Purchaser under or in respect of any legislation including the Resource Management Act 1991, the Health and Safety in Employment Act 1992, the Dangerous Goods Act 1974 and the Health Act 1956 except to the extent provided herein and in the case where the Purchaser is holding itself out as acquiring the goods for the purposes of using them in business (as defined by the Consumer Guarantees Act 1993) the Purchaser agrees not to assert or attempt to assert any rights or claims against Barcode Products Limited under the provisions of that Act but in all other circumstances the Purchaser acknowledges that it may have rights under the Consumer Guarantees Act 1993 which override the provisions of the Contract.
9. Default by Purchaser
If the Purchaser defaults in the due payment of the Contract Price or any installment thereof Barcode Products Limited without prejudice to any other right it has at law or in equity may suspend or terminate the Contract. In the event of default Barcode Products Limited may enter upon the premises where any goods for which Barcode Products Limited has not been paid are stored and take possession and remove those goods without being responsible for any damage caused in so doing and may resell those goods and apply the proceeds towards the payment of all moneys owing to Barcode Products Limited by the Purchaser and all costs incurred by Barcode Products Limited as a result of such action shall be immediately payable by the Purchaser. Upon termination of this Contract any amount payable by the Purchaser to Barcode Products Limited under this Contract shall be deemed to have fallen due and be payable immediately prior to any such termination occurring and the Purchaser will upon demand pay to Barcode Products Limited all monies (including but not limited to solicitor’s costs, Court costs, and disbursements) incurred or expended by Barcode Products Limited in recovering payment of any overdue amount.
Unless otherwise agreed in writing the Purchase Price of the goods shall become due and payable in full within 7 days following the date of invoice.
(1) No goods shall be returned by the Purchaser without the prior written approval of Barcode Products Limited which approval may be subject to conditions. No custom-made goods nor any goods imported by Barcode Products Limited to satisfy the Purchaser’s order are returnable and any goods accepted by Barcode Products Limited for return shall be subject to a restocking fee of $25.00 or 15% of the invoice price, whichever is the greater. (2) The right to reject non-conforming goods shall be limited so as to be effective only if rejection is notified in writing to Barcode Products Limited within 14 days of receipt of the goods and the goods are forthwith returned to Barcode Products Limited at the Purchaser’s expense. No claim for damages or otherwise shall be effective or enforceable unless written notice thereof is given to the company within 30 days of receipt of the goods.
12. Price Variations
Subject to any provision to the contrary contained on any Barcode Products Limited quotation all prices for goods are exclusive of Goods and Services Tax (“GST”) and any other taxes and duties relating to the supply of goods to the Purchaser.
(1) Barcode Products Limited may in its discretion, arrange for the delivery of the goods to the Purchaser’s warehouse to an agreed delivery point and in so doing Barcode Products Limited is deemed to be acting under the instructions of the Purchaser and as agent for the Purchaser. The Purchaser acknowledges and agrees that Barcode Products Limited may charge for any such delivery. (2) Notwithstanding anything to the contrary elsewhere in this Contract, risk passes to the Purchaser upon delivery to the Purchaser and the Purchaser shall at its own expense insure the goods against all risks and shall keep such insurance current until payment for the goods has been made to Barcode Products Limited.
In the event of any term or provision of this contract being held to be invalid, illegal or unenforceable such invalidity, illegality or unenforceability shall not affect any other term or provision and these conditions shall be interpreted and construed as if such term or provision to the extent that the same shall have been held to be invalid, illegal or unenforceable was not contained in these conditions.
15. Governing Law
This Contract shall be governed by the laws of New Zealand.
The Purchaser agrees to pay all of Barcode Products Limited’ costs and expenses (whether solicitor, client costs or otherwise) incurred by Barcode Products Limited in the enforcement or attempted enforcement of its rights under the Contract and a statement of account signed by an officer of Barcode Products Limited sent by ordinary post to the Purchaser’s last known address shall be prima facie evidence of the amount due to Barcode Products Limited by the Purchaser.
17. Privacy Act 1993
Where the Purchaser is an individual the Purchaser irrevocably authorises Barcode Products Limited to obtain from any third party such information in respect of the Purchaser as Barcode Products Limited may require in connection with its lawful commercial purposes including determining whether to extend credit to the Purchaser and to verify any such information.
All the original rights, powers, and exemptions of Barcode Products Limited shall remain in full force notwithstanding any neglect forbearance or delay in the enforcement thereof. Barcode Products Limited shall not be deemed to have waived any condition unless such waiver shall be in writing under the signature of the general manager of the company and such waiver unless the contrary shall be expressly stated shall apply to and operate only in the particular transaction, dealing or matter.