MOUNTiT Limited
Conditions Of Sale
1. Interpretation.1 These conditions of sale are entered into on behalf of and are intended to bind and be for the benefit of the Company and the Company’s successors and assigns.
.2 In these conditions:
“the Company” means MOUNTiT Limited

“the buyer” means the person, firm or company buying the goods from the Company

“the goods” means the goods, machinery or equipment being purchased by the buyer from the Company which are the subject of the contract

“the contract” means the contract between the Company and the buyer for the purchase of the goods

“the contract price” means the price of the goods as agreed between the Company and the buyer, subject to any variation in accordance with clauses 2 or 3

“person” includes a corporation, association, firm, company, partnership or individual
.3 Headings are used as a matter of convenience only and shall not affect the interpretation of these conditions.2. Price.1 The price contained in the contract is based upon rates and costs as at the date of the contract or where the contract arises from a quotation given by the Company, as at the date of quotation of materials, transport, labour, customs duty, insurance and other rates and costs. .2 The price may be increased by the amount of any increase in the cost of any such items or any other factors (including any change in exchange rates) affecting the cost of supply, production and/or delivery of the goods due to circumstances beyond the control of the Company between the abovementioned date and the date of delivery.3. Taxes And Duties.1 Unless expressly included in any quotation given by the Company, sales taxes, goods and services and other taxes, goods and services and duties assessed or levied in connection with the supply of the goods to the buyer are not included in the price and are the responsibility of the buyer or, where the payment of such taxes or duties is the responsibility of the Company at law, the price will be increased by the amount of such taxes or duties. .2 Where sales taxes, goods and services or other taxes or duties are expressly included in any quotation given by the Company, any increase in the amount of such taxes or duties between the date of quotation and the date of delivery of the goods are the responsibility of the buyer and the price will be increased accordingly.4. Payment.1 Subject to any provision to the contrary in the contract, payment must be made upon delivery of the goods in accordance with clause 6..2 In the case of export sales, payment must be made by confirmed irrevocable letter of credit unless otherwise agreed. Letters of credit shall, unless otherwise agreed, be established through a first class bank and be irrevocable, confirmed and without recourse available for the Company’s draft at sight and otherwise in a form satisfactory to the Company..3 Any additional payments due by the buyer pursuant to any of the provisions of the contract must be paid at the time provided in the contract or, if no time is provided, within 7 days of payment being demanded in writing by the Company..4 If the Company at any time deems the credit of the buyer to be unsatisfactory, it may require security for payment and may suspend performance of its obligations under the contract until the provision of sufficient security. All costs and expenses of or incurred by the Company as a result of such suspension and any recommencement are payable by the buyer upon demand..5 The buyer is not entitled to withhold payment or to make any deductions from the contract price without the prior written consent of the Company..6 Receipt of a cheque, bill of exchange, or other negotiable instrument by the Company will not constitute payment and the buyer remains liable for the full contract price until such cheque, bill of exchange, or negotiable instrument is paid in full.5. Interest For Late Payment .1 Interest at 18% per annum calculated on a daily basis is payable on any moneys outstanding under the contract from the date payment was due until the date payment is received by the Company but without prejudice to the Company’s other rights in respect of non-payment or late payment.6. Delivery.1 Notwithstanding any obligation on the part of the Company to carry out any installation work under this contract, delivery is to be made at the place indicated in the contract or, if no place is indicated in the contract (and in the case of sales ex-works), delivery is to be made at the Company’s premises. If the buyer fails or refuses or indicates to the Company that it will fail or refuse to take or accept delivery, then the goods are deemed to have been delivered when the Company was willing to deliver them..2 In the case of export sales, delivery on a sale FOB, CIF, or C&F basis in accordance with Incoterms 1990 will, unless otherwise stated in the contract, be complete when the goods effectively pass the ship’s rail at the port of shipment or arrive at the airport for despatch or earlier leave the Company’s custody for shipment to the buyer. Trans-shipment is be allowed. Delivery may be effected by the Company at its election by one or more shipments..3 The Company reserves the right to deliver the goods by instalments and each instalment is deemed to be a separate contract under the same provisions as the main contract. Should the company fail to deliver or make defective delivery of one or more instalments this shall not entitle the buyer to repudiate the main contract..4 Whether or not the contract includes installation work and without prejudice to any other rights and remedies which it may have, the Company may charge storage and transportation expenses if the buyer fails or refuses to take or accept delivery or indicates to the Company that it will fail or refuse to take or accept delivery and/or permit installation at the time specified in this contract or at any other times as the Company is able to deliver and/or install the goods.7. Risk.1 Risk of any loss, damage or deterioration of or to the goods is to be borne by the buyer from the date of delivery of the goods..2 Risk of any damage to the goods arising out of any installation work carried out at the buyer’s premises is to be borne by the buyer excepting only where such damage is caused by the negligence of the Company, its servants, agents or contractors in carrying out any such installation work in which event such damage is the responsibility of the Company.8. Property.1 Property in the goods does not pass from the Company to the buyer until the contract price and all other moneys payable under the contract have been paid in full.9. Installation.1 Where this contract provides for installation of the goods to be carried out by the Company this contract is upon the basis that it is the buyer’s responsibility:a. To provide suitable access to the premises in all weather conditions for the vehicles and equipment that the Company will need to use in carrying out such installation.b. To provide all necessary services and amenities to enable the Company to carry out such installation.c. To ensure that the premises and foundations are structurally sound and in a proper condition for the installation to proceed.d. To provide all plant, materials and services required to be provided by the buyer at such times and in such manner as to cause the Company no delay in carrying out such installation.e. To provide safe and secure onsite storage for materials and accessories supplied and used by the Company, its employees and contractors..2 The buyer must advise the Company promptly of any decision or instruction that needs to be made or given prior to the Company being able to proceed with installation of the goods.10. Delay; Force Majeure.1 If any time for delivery or installation of the goods or completion of the contract or any part of it is stated in the contract, such time is approximate only and is not deemed to be of the essence of the contract..2 The Company is not liable for failure to deliver or to carry out any installation or any commissioning or testing of the goods or for any delay in delivery or in carrying out any installation or any commissioning or testing of the goods where such failure or delay is caused by strike, combination of workmen, lockout, difficulty in procuring components or materials, shortage of labour, lack of skilled labour, delays in transit, failure or delay by the buyer in performing any of its obligations under this contract, failure or delays by suppliers or subcontractors, failure, delay or inability to obtain any necessary import or export licence, foreign exchange control authorisation or similar authorisation, legislative, governmental or other prohibitions or restrictions, fire, flood, hostilities, commotions or other causes whatsoever (whether similar in nature or not to the foregoing) beyond the Company’s reasonable control..3 If the manufacture, supply or delivery of the goods or, where the contract provides for the installation of the goods, the installation or any commissioning or testing of the goods is delayed by reason of or as a result of any act, omission, default or request by or on behalf of the buyer, the Company may, without prejudice to its other rights and remedies, require payment by the buyer of such portion of the contract price as represents the extent to which the Company has performed the contract or carried out work required by the contract up to the date such payment is required together with any expenses or additional costs incurred by the Company as a result of such delay. In the event of such delay continuing beyond a reasonable time, the Company may, without prejudice to its other remedies, terminate the contract.11. Warranty.1 The Company warrants that it will repair or make good any defects in materials or workmanship arising within the period specified in the contract or, where no time is specified, within 1 month from the date of delivery of the goods, or where any installation work is carried out by the Company, arising within the time specified in the contract or, where no time is specified, within 1 month of the completion of such installation work. No claim will be accepted under such warranty unless written notice of the claim is received by the Company as soon as reasonably possible after the defect is discovered nor will any claim be accepted:a. If any attempt to repair the defective goods or any installation work is made by any person or persons not authorised by the Company to effect such repairs; orb. If the defective goods have been modified or incorrectly stored, maintained, installed or operated..2 If the Company decides to repair any defective goods, such repair will be carried out at such place as the Company may specify and the buyer is responsible for shipment of the defective goods to the place or places so specified..3 In the event that the goods or any of their components are not manufactured by the Company, then the foregoing warranty does not apply to such goods components as are not manufactured by the Company and no warranties are given by the Company in respect of such goods or components. In the case where the manufacturer or supplier of any such goods or components provides any warranty, then the Company (to the extent that it is able to do so) will make such warranty available to the buyer..4 In the event that the Company fails to perform its warranty obligations under clause 11.1, the Company’s liability for such failure is limited to damages which are subject to the limitation contained in clause 12.1.12. Liability.1 Where the contract provides for any testing or commissioning procedure or any other acceptance procedure in respect of the goods, no claim may be made by the buyer if the goods fail to comply with the requirements of the contract at any time after the successful completion of such testing, commissioning or acceptance procedures, subject however to the warranty in respect of defective materials or workmanship contained in clause 11.1..2 The Company is not liable for any loss of profits or any consequential, indirect or special loss, damage or injury of any kind whatsoever suffered by the buyer arising directly or indirectly from any breach of any of the Company’s obligations arising under or in connection with the contract or from any cancellation of the contract or from any negligence on the part of the Company, its employees, agents or contractors nor is the Company liable for any loss, damage or injury caused to the buyer’s employees, agents, contractors, customers, visitors, tenants, trespassers or other persons whomsoever (whether similar to the foregoing or not) arising in the preceding manner. The buyer must indemnify the Company against any claim by any of the foregoing persons in respect of any loss, damage or injury arising in the preceding manner..3 Notwithstanding anything else contained in this clause or in this contract, the liability of the Company, whether in contract or pursuant to any cancellation of the contract or in tort or otherwise howsoever, in respect of all claims for loss, damage or injury arising from breach of any of the Company’s obligations arising under or in connection with the contract, from any cancellation of the contract or from any negligence on the part of the Company, its employees, agents or contractors (including, without in any way limiting the foregoing, any loss, damage or injury arising as aforesaid from the carrying out of any installation work) shall not in aggregate exceed the contract price.13. Default And Indemnity.1 If the buyer defaults in the due payment of any moneys payable to the Company under the contract or if the buyer commits any act of bankruptcy, enter into any composition or arrangement with its creditors or (in the case of a company) does any act which would render it liable to be placed in liquidation or have a receiver appointed over its property, the Company, without prejudice to any other right it has at law or in equity, may, at its option, suspend or terminate the contract, and payment for the goods delivered and work performed up to the date of such suspension or termination and any other moneys payable hereunder will immediately become due and payable. .2 In any of the foregoing events, the Company also reserves the right, as the agent of the buyer, to enter upon the premises where the goods are situated and take possession of and remove them without being responsible for any damage thereby caused, and the Company may resell such goods and any of the goods in the possession of the Company and apply the proceeds in or towards payment of the contract price. .3 All costs and expenses of or incurred by the Company as a result of any such action together with transportation and storage charges are payable by the buyer upon demand. Any suspension of the contract by the Company does not prevent it terminating the contract during the period of suspension.14. Patents And Copyright.1 Copyright in all drawings, specifications and other technical information provided by the Company in connection with the contract is vested in the Company..2 If any goods are to be supplied to the buyer’s design, the buyer hereby warrants that the manufacture and supply of such goods by the Company will not infringe any patent, copyright or other rights of any other person and the buyer agrees to indemnify the Company against any liability incurred by the Company including any costs and expenses in the event of any claim being made that the manufacture or supply of such goods by the Company infringes any patent, copyright or other rights of any other person.15. Dimensions And Specifications.1 Dimensions and specifications contained or referred to in the contract or in any catalogues or other publications maintained or issued by the Company are estimates only. .2 Unless otherwise expressly agreed in writing, it is not a condition of the contract that the goods will correspond precisely with such dimensions and specifications, and customary tolerances, or in the absence of customary tolerances, reasonable tolerances will be allowed.16. Colour.1 Should the Company be obliged to match any shade or colour, a light and dark tolerance will be allowed to such extent as is agreed upon by the Company and the buyer, and in the absence of any agreement, a reasonable tolerance will be allowed.17. Acceptance.1 Where these conditions of sale form part of a written quotation, the quotation is open for acceptance for a period of 30 days from the date of quotation. The quotation may be withdrawn by the Company at any time before acceptance. Acceptance arises upon receipt by the Company of the buyer’s written acceptance unless the Company agrees otherwise.18. Contract.1 The items mentioned in the quotation (where the contract arises from a quotation by the Company) or the items contained in the Company’s confirmation of order (where the contract arises from an order by the buyer) together with these terms and conditions are the conditions of the contract. .2 All other conditions, warranties, descriptions, representations, conditions as to fitness or suitability for any purpose, tolerance to any conditions, merchantability or otherwise (whether of a like nature or not) and whether express or implied by law, trade custom or otherwise are expressly excluded. .3 In the case of any conflict between an order submitted by the buyer and the Company’s confirmation of order and these terms and conditions, the Company’s confirmation of order and these terms and conditions prevail. .4 No agent or representative of the Company is authorised to make any representations, warranties, conditions or agreement not expressly confirmed by the Company in writing and the Company is not in any way bound by any such unauthorised statements nor can any such statements be taken to form a contract or part of a contract with the Company collateral to the contract.19. Waiver.1 All the original rights, powers, exemptions and remedies of the Company remain in full force notwithstanding any neglect, forbearance or delay in their enforcement. .2 The Company is not deemed to have waived any condition unless such waiver is in writing under signature of the Company or its authorised officer and any such waiver, unless the contrary is expressly stated, applies to and operates only in a particular transaction, dealing or matter.20. No Assignment.1 The buyer may not assign all or any of the buyer’s rights or obligations under the contract without the prior written consent of the Company.21. Personal Property Securities Act 1999.1 The buyer acknowledges that clause 8 creates a security interest (“Security Interest”) (as that term is defined in the Personal Property Securities Act 1999 (“PPSA”)) in the goods. The buyer will at the Company’s request promptly execute any documents, provide all necessary information and do anything else required by the Company to ensure that the Security Interest constitutes a Perfected Security Interest (as that term is defined in the PPSA) and which will have priority over all other Security Interests in the goods..2 The buyer agrees, to the extent permitted by law, that the buyer shall have no rights under the following provisions of Part 9 of the PPSA to:a. receive a notice under section 114(1)(a);b. receive a statement of account under section 116;c. surplus distributed under section 117;d. recover any surplus under section 119;e. receive notice of any proposal of the Company to retain collateral under section 120(2);f. object to any proposal of the Company to retain collateral under section 121;g. not have goods damaged in the event that the Company were to remove an accession under section 125;h. receive notice of the removal of an accession under section 129;i. apply to the Court for an order concerning the removal of an accession under section 131; and. redeem collateral under section 132;k. reinstate the contract under section 133..3 The buyer further agrees that where the Company has rights in addition to those under Part 9 of the PPSA, those rights shall continue to apply..4 The buyer waives its right under the PPSA to receive a copy of any Verification Statement (as that term is defined in the PPSA).22. Law And Jurisdiction.1 The contract in all respects is deemed to be a contract made in New Zealand and the construction, validity and performance of the contract is governed by New Zealand law. The exclusive jurisdiction of the New Zealand courts to entertain all claims and actions arising out of the contract is accepted and acknowledged by the buyer provided however that the Company is entitled to commence any action arising out of or in respect of the contract in any other court.