1. Supply & Acceptance
1.1 The Supplier shall have an absolute discretion as to whether to supply the Customer with Goods or not and may cancel this agreement at any time in its absolute discretion, withhold any Goods agreed to be supplied and/or require immediate payment of any Goods so supplied.
1.2 Confirmation of an order following the giving of a quote or receipt of any Goods will be deemed to be acceptance by the Customer of these Terms and Conditions, notwithstanding anything that may be stated to the contrary on the Customer’s order.
2.1 The price of any Goods supplied shall be the price as determined from time to time by the Supplier. Prices are subject to change without notice.
2.2 Irrespective of all prices listed or quoted, all Goods are supplied at the prices applicable at the date of delivery and the Supplier reserves the right to pass on to the Customer any change in price after acceptance of the Customers order.
2.3 If GST or other taxes are payable on Goods supplied or on any amount payable the Customer shall pay such tax.
2.4 All prices are exclusive of freight costs, insurance charges and installation and maintenance costs, and any net discount (if any) unless otherwise agreed by the Supplier and the Customer in writing.
2.5 Any quotation provided by the Supplier is deemed accepted by the Customer if the Customer signs the quotation or orders the quoted Goods. The Supplier has the right to withdraw the quoted offer before the Customer confirms the quotation. The quoted prices will be valid only for 14 days from the date of issuing the quotation.
3. Terms of Payment
3.1 Unless otherwise agreed by the Supplier payment is due on the 20th of the month following the order being made ("Due Date").
3.2 Payment of all monies will be made without set-off or deduction of any kind.
4. Validity of Payment and Guarantee
4.1 The Customer acknowledges that:
(a) All payments made to the account of the Customer with the Supplier are in the ordinary course of the Customer’s Business;
(b) All payments received by the Supplier to the Customer’s account are received by the Supplier on the reasonably held belief as to the validity of those payments unless advised by the Customer and;
(c) In accepting such payments on or after the Due Date for payment thereof the Supplier has altered its position in reliance on the validity of such payments.
5.1 The Supplier shall not be liable for any failure in its obligations to the Customer or any loss or damage to the Goods during transportation even though such loss or damage may be caused by the Supplier’s negligence or other default.
5.2 Orders are generally shipped within 24 hours upon receipt. Shipping charges are based on method of shipment, weight and destination. Special shipping services are available upon request, at an additional charge.
5.3 The Supplier reserves the right to ship ordered Goods separately according to the availability of the Goods at the time of order.
5.4 Dates given for shipment or delivery are stated in good faith but are not to be treated as a condition of the sale. If delivery of the Goods is delayed for any reason whatsoever, the Supplier shall not be responsible or liable in any way to the Customer or any other party for loss sustained due to such delay.
5.5 The Supplier shall ship all Goods with a reasonable shelf life. Risk of loss due to the expiration of the Goods is exclusively that of the Customer.
5.6 The Supplier reserves the right to cancel delivery of the Goods or such installments thereof without prejudice to its rights to recover all sums owing to it in respect of deliveries already made.
5.7 Where the Customer does not take delivery of the Goods by the delivery date specified or such later date as the parties agree, the Customer shall pay reasonable storage costs until such time as the Customer accepts the Goods, such cost to be determined by the Supplier.
5.8 The Supplier shall ship all Goods free from any defect and in excellent condition. Upon receipt of the Goods the Customer shall inspect all cartons for any visible damage. The Customer shall accept no delivery if the cartons are visibly damaged.
5.9 The Customer shall immediately notify the carrier if there is any concealed damage and shall retain all packing material and boxes. Claims for missing or damaged items shall be reported to the Supplier within 24 hours of receipt of order.
5.10 No claim for any discrepancy in orders will be admitted unless it is made in writing to the Supplier within 72 hours of delivery.
5.11 Delivery by the Supplier to a carrier or to any party acting on the Customer’s behalf shall be deemed to be delivery to the Customer.
5.12 The Customer shall have no claims whatsoever against the Supplier in consequence of any such failure, cancellation or suspension.
6.1 Any failure on the part of the Customer to make payment when due shall constitute a breach of these Terms and Conditions for which the Customer shall be liable to compensate the Supplier by immediately making payment as liquidated damages (in addition to the amount due) of interest on the amount due from the Due Date until date of payment at a rate equal to 2% per month, such interest to accrue from the date payment was due until payment is made.
6.2 If the Customer is in breach of any of these Terms and Conditions or in breach of any other contract for supply with the Supplier, the Supplier shall be entitled to cancel this and any other contract for supply and seek damages accordingly.
6.3 Without prejudice to its other remedies the Supplier shall be entitled to cancel this and any other contract for supply with the Customer in the following circumstances.
(a) If the Customer becomes insolvent or is adjudicated bankrupt; or
(b) If a receiver is appointed in respect of the assets of the Customer; or
(c) If the Customer no longer carries on business or threatens to cease carrying on business; or
(d) If an arrangement with the Customer’s creditors is made or likely to be made; or
(e) If the ownership of effective control of the Customer is transferred or the nature of the Customer’s business is materially altered and in that event all monies otherwise payable by the Customer in respect of any Goods supplied by the Supplier shall become immediately due and payable.
6.4 The Customer shall pay all costs incurred by the Supplier, including costs on a solicitor-own basis and debt collectors costs, incurred in the recovery or attempted recovery of outstanding money and the enforcement of these Terms and Conditions.
6.5 Payments by the Customer shall be applied first in reduction of interest, liquidated damages and costs due pursuant to this clause 6, the balance then being in reduction of any amounts due pursuant to clauses 3 or 5.
7. Ownership and Risk
7.1 Subject to clause 9.2 and notwithstanding that ownership in the Goods may not have passed to the Customer risk in the Goods shall pass to the Customer when the Goods are delivered to the Customer or into the custody of the party acting on the Customer’s behalf or to a carrier and the Customer shall be obliged to insure the Goods from the time of delivery to the Customer.
7.2 Notwithstanding anything else, legal and beneficial ownership of any and all Goods shall remain with the Supplier until payment in full is made for them and for all other Goods supplied by the Supplier to the Customer.
7.3 If payment is dishonored or not made in whole or in part in respect of any of the Goods the Supplier may (without prejudice to any of its other rights) recover and/or resell the Goods or any of them and may (without the necessity of giving notice) enter upon the Customer’s premises or any other place where the Goods and/or the mixed Goods are stored by its servants or agents for that purpose (and the Customer grants to the Supplier an irrevocable right and authority to so recover, re-enter and re-sell) provided that the Supplier may only recover and resell for its own account sufficient of the Goods and/or the mixed Goods to satisfy all unpaid liabilities in respect of the Goods and the costs of resale. If any excess is recovered by the Supplier, it shall not be liable in damages but shall account for the excess to the Customer.
7.4 Until payment is made in full by the Customer for the Goods, the Customer holds the Goods as bailed for the Supplier and will store the Goods in such a manner that they are clearly identifiable as the property of the Supplier and will keep separate records in respect of the Goods.
7.5 If the Goods are sold or otherwise disposed of by the Customer prior to receipt by the Supplier of payment in full, the Customer will have been deemed to have done so as agent for the Supplier and the proceeds of such sale will be the property of the Supplier. The Customer will hold the proceeds of such sale on trust, on account for the Supplier, and keep them in a separate fund from its own money.
7.6 If any of the Goods are mixed or incorporated in other Goods ("mixed Goods") before payment is received, the Customer agrees that the property in the mixed Goods shall be and remain with the Supplier until such payment has been made in full. The Customer shall hold the mixed Goods as bailed for the Supplier and will store the mixed Goods in such a manner that they are clearly identifiable as the property of the Supplier and will keep separate records in respect of the same.
If the Customer sells the mixed Goods it will hold the proceeds of such sale on trust for the Supplier and will account to the Supplier for the value of the Goods and keep the proceeds in a fund separate from its own money and will keep separate records in respect of such money.
7.7 Where the Supplier has reasonable cause to believe:
(a) The Customer has not strictly complied with these Terms and Conditions and in particular, defaults of payment;
(b) Any of the circumstances in clause 6.3 exists or is likely to occur;
The Supplier may recover any or all of the Goods or the mixed Goods and re-sell the Goods or mixed Goods and for such purpose may at any time of the day or night and without the necessity of giving notice enter by force if necessary upon any premises where such Goods or mixed Goods are reasonably thought to be stored (and the Customer grants to the Supplier an irrevocable right and authority to so recover, re-enter and re-sell).
7.8 In exercising its rights pursuant to this clause, the Supplier shall be entitled to deduct from any sale of Goods or mixed Goods recovered from the Customer all the liabilities and expenses (including legal expenses on a solicitor-own client basis) incurred by the Supplier in enforcing or attempting to enforce its rights pursuant to this clause 7.
8. Personal Property Securities Act 1999
8.1 Expressions used in this clause in quotation marks have the meaning prescribed to them in the PPSA.
8.2 As security for payment of the price of the Goods and payment of any other amount owed by the Customer to the Supplier from time to time and as security for the performance by the Customer of the obligations set out in these Terms and Conditions the Customer grants the Supplier a “Security Interest” in the Goods.
8.3 The Supplier reserves the right at its discretion to register a “Financing Statement” in the Personal Property Securities Register to perfect its “Security Interest” in the Goods.
8.4 The costs of registering a “Financing Statement” or a “Financing Change Statement” shall be paid by the Customer and where applicable, debited by the Supplier against the Customer’s account with the Supplier.
8.5 On the request by the Supplier the Customer shall promptly execute any documents and do anything else required by the Supplier to ensure that the “Security Interest” created under these Terms and Conditions constitutes a “Perfected Security Interest” over the Goods.
8.6 The Customer shall not agree to allow any person to file a “Financing Statement” over any of the Goods without the prior written consent of the Supplier and shall notify the Supplier immediately if it becomes aware of any person taking steps to file a “Financing Statement” against any of the Goods which are subject to clause 8 of these Terms and Conditions and in respect of which credit has been extended by the Supplier to the Customer.
8.7 The Customer and Guarantor hereby waive their respective rights to receive a “Verification Statement” in respect of any “Perfected Security Interest”.
9. Consumer Guarantees Act 1993
9.1 The Supplier is supplying Goods to the Customer for business purposes within the meaning of the Consumers Guarantees Act 1993 and pursuant to section 43 thereof the provisions of that Act shall have no effect.
10.1 We want you to feel completely satisfied with your purchase. If you are not satisfied with your purchase, please feel free to contact us at 0800 422 377 to discuss the matter and obtain a Return Authorization Number (“RAN”). Please note:
(a) Returned Goods are at the Supplier’s sole discretion;
(b) We cannot accept any returns after 14 days from the invoice date;
(c) All returns must be in saleable condition; we cannot accept back any Goods that have been used, opened, written on or are not, in our opinion in saleable condition;
(d) Sterile Goods that have been opened cannot be returned;
(e) Sterile Goods cannot be returned after 30 days;
(f) Goods that are noted “non-returnable” may not be returned.
(g) Goods will be shipped with a reasonable shelf life but the risk of loss due to the expiration of the item is exclusively that of the purchaser.
10.2 If accepted, the returned Goods must be returned to our premises with all transportation charges, insurance, taxes, duties and additional charges being borne by the Customer;
10.3 Where the Supplier agrees to give a credit for returned Goods the Supplier may charge a restocking fee of 15% of the retail price of the Goods at the date of the return of the Goods.
11. Warranties and Conditions
11.1 All representations or terms (including any condition or warranty expressed or implied by law, statute or otherwise) not expressly included in these terms and conditions are hereby expressly excluded.
11.2 No action or claim may be brought against the Supplier unless notice of such claim is brought within 30 days of dispatch of the Goods to the Customer and the Supplier shall be released from all or any liability unless proceedings are brought in a Court of competent jurisdiction within one year of accrual of any cause of action.
11.3 The Customer undertakes to insert a similar provision to this clause 11 in its terms and conditions of trade with any business or non-consumer purchaser it re-supplies with the Goods and further undertakes to indemnify the Supplier from any loss or liability incurred as a direct result of its failure to include such a provision.
12. Limitation of Liability
12.1 The Supplier’s liability in any case shall be limited to the purchase price of the Goods in respect of which such liability arises. The Supplier shall have no further liability or responsibility for any direct, indirect or consequential injury, loss or damage whatsoever arising.
12.2 The Supplier does not manufacture any of the Goods that it supplies and accordingly shall have no liability or responsibility for loss or damage as a result of use of the Goods.
13.1 Severability - If any of the terms and conditions is held by a Court to be ineffective by virtue of non-registration, illegality or otherwise, then such condition or part of it, shall be severed from all other conditions without affecting the validity or enforceability of all other conditions or part of them.
13.2 These terms and conditions shall prevail over any verbal or written agreement and take precedence over any document or oral message from the Supplier.
13.3 Where the Supplier fails to enforce any terms of conditions the Supplier will not be deemed to have waived these rights with respect to any term or condition or right.
13.4 Amendments - The Supplier is entitled, without notice, to alter or amend these Terms and Conditions of Trade at any time. The changes will be in effect from the date of release. The latest updated Terms and Conditions of Trade can be found at our website: www.acers.co.nz. It is the sole responsibility of the Customer to keep their knowledge of these Terms and Conditions of Trade up to date. The most recent Terms and Conditions of Trade will govern any ordered Goods at the time of the order. It is deemed that the Purchaser has accepted the Terms and Conditions of Trade in effect at the time of order.
13.5 Applicable Law - The parties agree that this contract shall be subject to the laws of New Zealand and subject to the exclusive jurisdiction of the New Zealand Courts.
13.6 Privacy Act - The Customer agrees that the Supplier may obtain credit reports from Credit Reporting Agencies and other credit providers for the purpose of assessing this and any other application you make for commercial credit. The Customer further agrees the Supplier may obtain credit information from Credit Reporting Agencies from time to time for the purpose of reviewing and assessing the Customer’s commercial credit availability. The Supplier may disclose to any Credit Reporting Agencies any information in the Supplier’s possession relating to your credit Facility.
13.7 Disputes - The Customer shall notify the Seller of any dispute in writing forthwith. Both parties will attempt to resolve the dispute in good faith within 14 days of that notice. Pending resolution of any dispute, the Customer shall pay that part of the invoice not in dispute in the manner and time set out herein.
13.8 Arbitration - Any dispute or difference arising as to the interpretation of the contract or the rights or obligations of either party other than the Seller’s right of recovery of price or Goods shall be referred to arbitration under the Arbitration Act 1996 or any Act passed in amendment thereof or in substitution therefore.
14.1 Where the term is used herein:
“Customer” includes its successors and assigns
“Delivery” shall include when the Goods are uplifted from the Supplier;
“Goods” means any Goods supplied to the Customer by the Supplier including but not limited to any dental products including oral care and preventative products, consumables, instruments and equipment and also any educational, training and information services paid for by the Customer;
“PPSA” means the Personal Property Securities Act 1999;
“Supplier” means Acers Dental Limited and includes its successors and assigns.
14.2 Notwithstanding that these Terms of Trade refer to the supply of “Goods” all services supplied by the Supplier shall also be subject to these Terms of Trade such that where applicable the word “Goods” shall be read as “goods and services” to the extent necessary to give effect to the intent of this clause 14.2.