1. Definitions
1.1 “ISL” means ISL Limited T/A ISL Medical and Scientific, its successors and assigns or any person acting on behalf of and with the authority of ISL Limited T/A ISL Medical and Scientific.
1.2 “Customer” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
1.3 “Goods” means all Goods or Services supplied by ISL to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable for the Goods as agreed between ISL and the Customer in accordance with clause 4 below.
2. Acceptance
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with ISL’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and ISL.
3. Change in Control
3.1 The Customer shall give ISL not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details(including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by ISL as a result of the Customer’s failure to comply with this clause.
4. Price and Payment
4.1 At ISL’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by ISL to the Customer; or
(b) ISL’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
4.2 ISL reserves the right to change the Price if a variation to ISL’s quotation is requested. Any variation from the plan of scheduled works or specifications (including, but not limited to, for overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges or additional works required due to hidden or unidentifiable difficulties beyond the control of ISL) will be charged for on the basis of ISL’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by ISL, which may be:
(a) on delivery of the Goods;
(b) for certain approved Customer’s, due twenty (20) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
(c) the date specified on any invoice or other form as being the date for payment.
4.4 Payment may be made by cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Customer and ISL.
4.5 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to ISL an amount equal to any GST ISL must pay for any supply by ISL under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
5. Delivery of Goods
5.1 Delivery(“Delivery”) of the Goods is taken to occur at the time that ISL (or ISL’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
5.2 At ISL’s sole discretion the cost of delivery is included in the Price.
5.3 The Customer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then ISL shall be entitled to charge a reasonable fee for redelivery and/or storage.
5.4 Anytime or date given by ISL to the Customer is an estimate only. The Customer must still accept delivery of the Goods even if late and ISL will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.
6. Access
6.1 The Customer shall ensure that ISL has clear and free access to the work site a tall times to enable them to undertake the works. ISL shall not be liable for any loss or damage to the site unless due to the negligence of ISL.
7. Risk
7.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
7.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, ISL is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by ISL is sufficient evidence of ISL’s rights to receive the insurance proceeds without the need for any person dealing with ISL to make further enquiries.
8. Title
8.1 ISL and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid ISL all amounts owing to ISL; and
(b) the Customer has met all of its other obligations to ISL.
8.2 Receipt by ISL of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
8.3 It is further agreed that:
(a) until ownership of the Goods passes to the Customer in accordance with clause 8.1 that the Customer is only a bailee of the Goods and must return the Goods to ISL on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for ISL and must pay to ISL the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for ISL and must pay or deliver the proceeds to ISL on demand.
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of ISL and must sell, dispose of or return the resulting product to ISL as it so directs.
(e) the Customer irrevocably authorises ISL to enter any premises where ISL believes the Goods are kept and recover possession of the Goods.
(f) ISL may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of ISL.
(h) ISL may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
9. Personal Property Securities Act 1999(“PPSA”)
9.1 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Goods previously supplied by ISL to the Customer (if any) and all Goods that will be supplied in the future by ISL to the Customer.
9.2 The Customer undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which ISL may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, ISL for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
(c) not register a financing change statement or a change demand without the prior written consent of ISL; and
(d) immediately advise ISL of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
9.3 ISL and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
9.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
9.5 Unless otherwise agreed to in writing by ISL, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
9.6 The Customer shall unconditionally ratify any actions taken by ISL under clauses 9.1to 9.5.
10. Security and Charge
10.1 In consideration of ISL agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
10.2 The Customer indemnifies ISL from and against all ISL’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising ISL’s rights under this clause.
10.3 The Customer irrevocably appoints ISL and each director of ISL as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Customer’s behalf.
11. Customer’s Disclaimer
11.1 The Customer hereby disclaims any right to rescind, or cancel any contract with ISL or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by ISL and the Customer acknowledges that the Goods are bought relying solely upon the Customer’s skill and judgment.
12. Defects
12.1 The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify ISL of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford ISL an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which ISL has agreed in writing that the Customer is entitled to reject, ISL’s liability is limited to either (at ISL’s discretion) replacing the Goods or repairing the Goods.
13. Returns
13.1 Returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 12.1; and
(b) ISL has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Customer’s cost within thirty (30) days of the delivery date; and
(d) ISL will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
13.2 Returned Goods may (at ISL’s sole discretion), incur restocking and handling fees.
13.3 Non-stocklist items or Goods made to the Customer’s specifications are under no circumstances acceptable for credit or return.
14. Warranty
14.1 Subject to the conditions of warranty set out in clause 14.2ISL warrants that if any defect in any workmanship of ISL becomes apparent and is reported to ISL within twelve (12) months (for new Goods) and thirty (30)days (for second hand Goods) of the date of delivery (time being of the essence) then ISL will either (at ISL’s sole discretion) replace or remedy the workmanship.
14.2 The conditions applicable to the warranty given by clause 14.1are:
(a) the warranty shall not cover any defector damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Customer to properly maintain any Goods; or
(ii) failure on the part of the Customer to follow any instructions or guidelines provided by ISL; or
(iii) any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv)the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and ISL shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without ISL’s consent.
(c) in respect of all claims ISL shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.
14.3 For Goods not manufactured by ISL, the warranty shall be the current warranty provided by the manufacturer of the Goods. ISL shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
14.4 In the case of second hand Goods, the Customer acknowledges that he has had full opportunity to inspect the same and that he accepts the same with all faults and that no warranty is given by ISL as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. ISL shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
15. Consumer Guarantees Act 1993
15.1 If the Customer is acquiring Goods for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by ISL to the Customer.
16. Intellectual Property
16.1 The Customer agrees that ISL may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which ISL has created for the Customer.
17. Default and Consequences of Default
17.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at ISL’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
17.2 If the Customer owes ISL any money the Customer shall indemnify ISL from and against all costs and disbursements incurred by ISL in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, ISL’s collection agency costs, and bank dishonour fees).
17.3 Without prejudice to any other remedies ISL may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions ISL may suspend or terminate the supply of Goods to the Customer. ISL will not be liable to the Customer for any loss or damage the Customer suffers because ISL has exercised its rights under this clause.
17.4 Without prejudice to ISL’s other remedies at law ISL shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to ISL shall, whether or not due for payment, become immediately payable if:
(a) any money payable to ISL becomes overdue, or in ISL’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator(provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
18. Cancellation
18.1 ISL may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice ISL shall repay to the Customer any money paid by the Customer for the Goods. ISL shall not be liable for any loss or damage whatsoever arising from such cancellation.
18.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by ISL as a direct result of the cancellation (including, but not limited to, any loss of profits).
18.3 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
19. Privacy Act 1993
19.1 The Customer authorises ISL or ISL’s agent to:
(a) access, collect, retain and use any information about the Customer;
(i) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Customer.
(b) disclose information about the Customer, whether collected by ISL from the Customer directly or obtained by ISL from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer.
19.2 Where the Customer is an individual the authorities under clause 19.1 are authorities or consents for the purposes of the Privacy Act 1993.
19.3 The Customer shall have the right to request ISL for a copy of the information about the Customer retained by ISL and the right to request ISL to correct any incorrect information about the Customer held by ISL.
20. General
20.1 The failure by ISL to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect ISL’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
20.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of Auckland.
20.3 ISL shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by ISL of these terms and conditions (alternatively ISL’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
20.4 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by ISL nor to withhold payment of any invoice because part of that invoice is in dispute.
20.5 ISL may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
20.6 The Customer agrees that ISL may amend these terms and conditions at any time. If ISL makes a change to these terms and conditions, then that change will take effect from the date on which ISL notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for ISL to provide Goods to the Customer.
20.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
20.8 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.