These terms and conditions of trade apply to all our Sale of Goods Contracts. Any order placed with TVC constitutes your agreement to be bound by these terms. Any additional or different terms you stipulate or state in any communication with TVC (including an order) are hereby objected to and will not bind TVC unless TVC agrees in writing. No sales person, representative or agent is authorised by TVC to give any guarantee, warranty or representation in addition to, or contrary to these terms. In any event, receipt of goods by you (or another as you direct) upon delivery constitutes your agreement to be bound by these terms.
1 Price and Price Variation
1.1 Prices quoted are excluding GST unless otherwise stated. Unless otherwise agreed in writing, the price of the goods will be the current price on the day of delivery of the goods. Prices do not include any delivery surcharges. 1.2 TVC shall be entitled to adjust any price quoted from time to time and the Customer agrees to pay any such adjusted price to take account of variations in the cost to TVC of carrying out the whole or any part of the contract arising from any of the following: (a) Delays in delivery as a result of instructions or lack of instructions from the Customer, the Customer’s failure or inability to fulfil the obligations under the contract or any action or inaction by the Customer or other circumstances beyond TVC control; (b) Variation in the cost of TVC acquiring the goods directly or indirectly, on account of changes in rates of freight and transport costs, insurance, customs duties, taxes, existing tariff classifications or any variation in currency exchange rates; (c) Variations in the cost of rates of all statutory, government or local government or governmental authority charges and obligations; or (d) Any correction of errors or omissions on the part of TVC or any of its representatives.
2.1 All goods and services sold are subject to Goods and Services Tax.
3.1 Unless otherwise agreed, the purchase price shall be paid to TVC immediately upon receipt of a tax invoice. Payment will not be accepted by any means other than direct debit, cheque, cash or direct credit. 3.2 If any account is in dispute, the undisputed portion of the account shall be payable in accordance with the normal terms of payment as provided in 3.1. Payment of the disputed portion may be withheld provided the matter is brought to TVC attention immediately it is discovered and a letter of explanation setting out the particulars of the dispute is sent to TVC within seven days of the dispute arising. 3.3 TVC reserves the right to suspend delivery of further goods if the terms of payment are not strictly adhered to by the Customer. If payment is not made by the 20th TVC reserves the right to cancel any serial numbers that have not been paid for in full and to deactivate any website login. 3.4 Interest may be charged on overdue accounts at 19.5%/pa by TVC until the account is paid off it full. 3.5 Any expenses, costs or disbursements incurred by TVC in recovering any outstanding monies including debt collection agency fees or solicitor’s costs shall be paid by the Customer. 3.6 All goods will remain the property of TVC until full payment has been received.
4 New Account
4.1 Use of this account shall constitute acceptance of these terms and conditions. 4.2 The Customer shall not be liable for any indebtedness arising from the fraudulent use of the account provided that the Customer must on discovering the fraudulent use of the account immediately notify TVC of such fraudulent use. The burden of proving such use was fraudulent shall lie with the Customer 4.3 The Customer shall endeavour to return all goods acquired by fraudulent use. 4.4 Any account that has been inactive for more than 6 months from the date of the last invoice will be deemed inactive and dealer login to the website will be terminated. 4.5 Any account that is made inactive will no longer entitled to any dealer rebates in the way of renewal commission or otherwise.
5.1 TVC shall deliver the goods to the address stated on the order or as agreed by TVC in writing 5.2 TVC shall deliver the goods by such carrier and such form of transport TVC considers being appropriate. 5.3 Where you specify the carrier and the means of carriage, TVC shall deliver the goods in the way specified, the cost of such carriage being an additional charge to the invoiced price of the goods. 5.4 TVC will not be responsible for any part delivery or delay in delivery of the goods as a result of events occurring beyond TVC control. TVC shall not be in any way responsible for any consequences (direct or indirect) arising from such delay or non-delivery 5.5 The Customer agrees to inform TVC within 30 days of the date of invoice if proof of delivery is required. After this period, no liability will lie with TVC for proof of delivery.
6 Privacy Act 1993
6.1 The Customer authorises TVC to collect, retain, and use personal information about the Customer (including the information collected in this document) for the following purposes only: (a) assessing the Customer’s creditworthiness. (b) disclosing to a third party details of this application and any subsequent dealings it may have with TVC for the purpose of recovering amounts payable by the Customer and providing credit references. (c) marketing goods and services provided by TVC to the Customer. 6.2 The Customer, if an individual, has a right of access to information about the Customer held by TVC. The Customer may request correction of that information and may require that the request be stored with that information. TVC may charge reasonable costs for providing access to that information.
7 Intellectual Property
7.1 Where TVC has followed a design or instruction furnished by or given by the Customer, the Customer shall indemnify TVC against all damages, penalties, costs and expenses of TVC or in respect of which TVC may become liable through any work required to be done in accordance with these instructions involving an infringement of a patent, trademark, registered design or common law right. 7.2 Should TVC be required to replace packaging on product, tolerance shall be allowed to such an extent as shall be agreed by TVC and the Customer at the time the standard colour is specified and in the absence of any agreement a reasonable tolerance shall be allowed. 7.3 All information prepared by TVC including, without limitation, customised pricing, proposals, electronic catalogues, details of improvements and cost reductions, is the intellectual property of TVC and cannot be copied, altered or distributed without TVC prior written consent. TVC will not be liable for any alterations made by you.
8 Return of Goods
8.1 TVC will not accept the return of goods for credit or any other purpose unless TVC agrees to accept the return of the goods. Return of goods will only be accepted for credit within 30 days of delivery, unless due to TVC error. Return freight will be at TVC cost only when there has been an error on TVC part. 8.2 No returned goods shall be accepted by TVC (even if TVC agree to do so) if you or any other person have tampered them with and are not as new. Where goods are returned to TVC but not accepted as above, they shall be returned to you at your expense. 8.3 Receipt by TVC of any goods returned other than in accordance with clauses 8.1 and 8.2 shall not constitute nor be deemed to constitute TVC acceptance of the return of the goods for credit or any other purpose.
9.1 Risk in the goods shall pass to you at the time when our obligations under the contract are deemed under clause 5 to be completed.
10 PPSA Security Interest
10.1 The Customer grants to TVC a Security Interest in the goods and their Proceeds to secure the obligation of the Customer to pay the purchase price of the goods and any other obligations of the Customer to TVC under this contract (together “the Indebtedness”) and, where the goods and/or Proceeds are not readily identifiable and/or traceable or their recoverable value is insufficient to pay the indebtedness, the security interest shall also extend to all the Customers present and after acquired software, of which the goods form part, to the extent required to secure the Indebtedness. This is not limited to or by future renewals of the software. 10.2 As and when required by TVC the Customer shall, at its own expense, provide all reasonable assistance and relevant information to enable TVC to register a Financing Statement or Financing Change Statement and generally to obtain, maintain, register and enforce TVC Security Interest in respect of the goods supplied, in accordance with the Personal Property Securities Act 1999 (“PPSA”). 10.3 The Customer shall not change its name without first notifying TVC of the new name, not less than 7 days before the change takes effect. 10.4 Notwithstanding any reference to a particular invoice/order, where any sum remains outstanding by the Customer on more than one invoice/order, any payments received from the Customer shall be deemed to be made by the Customer and applied by TVC in respect of each unpaid invoice/order on a pro rata basis PROVIDED THAT where TVC applies payments in this manner it shall not charge interest on overdue balances that would have been cleared if the payments were not allocated pro rata. 10.5 Until the Customer has paid all money owing to TVC the Customer shall at all times ensure that: (a) the goods supplied by TVC, while in the Customer’s possession, can be readily identified and distinguished; and/or (b) all Proceeds (in whatever form) that the Customer receives from the sale of any of the goods are readily Identifiable and Traceable. 10.6 Where the goods are purchased by the Customer as stock in trade for sale in the ordinary course of the Customer’s business, nothing in this clause shall prevent the Customer from selling and delivering the goods in the ordinary course of the Customer’s business. Otherwise, until the Customer has paid all money owing to TVC, the Customer shall not sell or grant a Security Interest in the goods without TVC written consent. 10.7 The parties agree to contract-out of the PPSA in accordance with Section 107 of the PPSA to the extent that Section 107 applies for the benefit of, and does not impose a burden on, TVC. The Customer waives its right to receive a Verification Statement in respect of any Financing Statement or Financing Change Statement registered by or on behalf of TVC in respect of the Security Interest created by these terms and conditions of trade. 10.8 For the purpose of this clause words and phrases starting with a capital letter shall have the respective meanings given to them under, or in the context of, the PPSA.
11.1 The Consumer Guarantees Act 1993 and the Consumer Guarantees Act 1993 applies to this contract: (a) if any of the goods fail to comply with any guarantee in the Consumer Guarantees Act, TVC will repair or replace those goods; (b) without excluding TVC’s obligations under the Consumer Guarantees Act 1993, the Customer acknowledges that TVC does not provide any Express Guarantees (as defined in that Act) other than those expressly confirmed by TVC in writing; (c) if the goods are acquired by the Customer for business purposes, the Customer agrees that the Consumer Guarantees Act 1993 does not apply; (d) if the Customer supplies the goods in trade to a person acquiring them for business purposes, it must be a term of the Customer’s contract that the Consumer Guarantees Act 1993 does not apply in respect of the goods; and (e) if the Customer supplies the goods to any person, the Customer must not give or make any undertaking assertion or representation in relation to the goods without TVC prior approval in writing, and the Customer must give the person buying the goods such product information relating to the goods as TVC requires, and the Customer agrees to indemnify TVC against any liability or cost incurred by TVC under the Consumer Guarantees Act 1993 as a result of any breach by the Customer of these obligations. 11.2 The following terms apply wherever the Consumer Guarantees Act 1993 does not apply to this contract, or where the following terms are not inconsistent with the Consumer Guarantees Act 1993: (a) Defective goods or goods which do not comply with the contract may at TVC discretion be repaired or replaced, or the price refunded. (b) Any right which the Customer may have to reject non-conforming or defective goods will only be effective if: (i) the Customer notifies TVC in writing within thirty days following delivery and TVC is given the opportunity to inspect the goods; and (ii) the goods are returned unused, re-saleable and/or in the condition the Customer received them. (c) TVC will not repair or replace, or refund the price of any goods for so long as the Customer is in default in relation to any amount owing. (d) TVC accepts no liability for any claim by the Customer or any other person, including without limitation any claim relating to or arising from: (i) Any conditions, warranties, descriptions, representations, conditions as to fitness or suitability for any purpose, tolerance to any conditions, merchantability or otherwise, whether express or implied by law, trade custom or otherwise; or (ii) Any representations, warranties, conditions or agreement made by any agent or representative which are not expressly confirmed by TVC in writing; or (iii) Any services forming part of the supply of the goods which have been performed by any third party; and the Customer agrees to indemnify TVC against any such claim. (e) In any event, TVC liability under any claim shall not exceed the price of the goods. 11.3 Nothing in these terms is intended to have the effect of contracting out of the provisions of the Consumer Guarantees Act 1993 except to the extent permitted by that Act, and these terms are to be modified to the extent necessary to give effect to that intention.
12 Customer’s Liability & Default
12.1 If the Customer shall: (a) fail to make any payment due under the contract or commit any other breach of any of the Customer’s obligations under the contract; or (b) suffer execution under any judgment; or (c) commit an act of bankruptcy; or (d) make any composition or arrangement with any creditor; or (e) being a company, pass a resolution for winding up or have a receiver appointed over any of its property or have a winding up petition presented against it, TVC (in addition to any other remedies hereby or by statute conferred) may treat the contract as terminated and any part of the purchase price then unpaid, together with any other monies owing hereunder, whether or not due under the terms of the contract shall forthwith become due and payable. Any such termination shall be without prejudice to any claim or right TVC may otherwise possess. (f) any account that is in default will be passed on to a debt collection agency and the deal will be liable for all fees incurred associated with debt collection. Not limited to the collection agency but also administrative fees from TVC.
13 Variations to Terms and Conditions of Trade
13.1 TVC may from time to time and in its sole discretion amend, add to or delete any of the terms of these terms and conditions of trade with immediate effect by giving notice to the Customer PROVIDED THAT TVC shall not make any variation to the nature or extent of the Security Interest granted by the Customer in clause 10.1 without the written agreement of the Customer. TVC may notify the Customer by delivering to the Customer an invoice with these terms and conditions of trade and receipt of the invoice by the Customer will be deemed to be acceptance by the Customer of the terms and conditions of trade.
14 Governing Law
14.1 These terms of trade are governed by the laws of New Zealand. 14.2 TVC and the Customer shall submit to the non-exclusive jurisdiction of the courts of New Zealand in respect of any dispute or proceeding arising out of these terms and conditions of trade.