Standard Terms and Conditions of Sale

We supply all contract services to you subject to these terms and conditions.

1 ACCEPTANCE

1.1 By placing an order with us, you accept these terms and conditions, despite anything stated to the contrary on your order, terms and conditions of purchase or similar document. Orders may not be cancelled after production has commenced.

2 PRICE

2.1 All orders will be filled at prices quoted by us in writing or otherwise current at the date of completion of work and/or delivery of the goods. Prices are subject to change without notice.

2.2 NTD undertakes that quotes remain open for acceptance for a validity period of 30 days from the date of the quotes.

2.3 Unless stated otherwise, all prices are exclusive of GST or other taxes payable on the work done or services performed by us for you or on any amount payable under clause 7, freight costs, insurance charges and maintenance costs. You must pay all of these taxes and charges unless we agree otherwise with you in writing.

2.4 NTD reserves the right to increase quoted prices in the event of statutory extensions to pay and conditions of staff. Upon receipt by NTD of notice of such statutory extensions and recalculation by NTD, NTD will immediately notify you of the price variations.

2.5 In the event that any action or lack of action from you or variation of your instructions causes additional cost or expense to us, then such further expense or cost shall be invoiced to you as an addition to the quoted price and you will be liable for payment of the same.

3 TERMS OF PAYMENT

3.1 Where we have agreed to supply you on trade terms, payment is due on the 20th of the month following the date of invoice.

3.2 You must make payment of all amounts owing to us without any set-off or deduction.

4 COMPLETION AND DELIVERY

4.1 Dates given for completion of work and delivery of goods on which work has been performed are stated in good faith but are not to be treated as a condition of the sale. If completion and delivery is delayed for any reason at all we will not be responsible or liable in any way to you or any other party for loss suffered due to the delay.

4.2 Any change in delivery date notified to you by us will be accommodated to the extent that we are able to accommodate it but in the event that the change necessitates price increase through staff working overtime or a variation of shifts, then all such extra expenses will be charged to you.

4.3 We may schedule work at our discretion and may make delivery of goods on which we have carried out work by instalments. We may cancel delivery without limiting or affecting our rights to recover all money you owe us for deliveries already made.

4.4 We will not accept any claim for discrepancy in orders unless you make written claim to us within 48 hours of delivery.

4.5 Delivery by us to a carrier will be deemed to be delivery to you.

5 WARRANTIES AND CONDITIONS

5.1 Where this agreement would otherwise be subject to the Consumer Guarantees Act 1993 (“Act”), and you are acquiring goods and services for business purposes as defined in the Act, you agree that you are acquiring goods and services for business purposes and that the Act does not apply to the supply of goods to you.

5.2 Where you supply goods or the product of our services to one of your customers and the supply to that customer would otherwise be subject to the Act, and the customer acquires or holds him or herself out as acquiring the same for business purposes as defined in the Act, then you warrant that you will obtain the written agreement of the customer that the Act will not apply to the supply to him, her or it.

5.3 You warrant that whether we supply you with services only or carry out work on goods supplied by you, the services or work are carried out according to your specification for your purposes and that you accept full responsibility for the proposed application. Our liability in relation to supply of goods as limited as set out in clause 10.

5.4 With the exception of any express written warranty we give, no warranty or condition will be implied against us by any statute, at common law or otherwise and no representation, condition, warranty or variation of these terms and conditions will bind us unless it is in writing and signed for us or on our behalf.

5.5 All goods and services are subject to usual trade tolerances over and under in respect of weight, dimensions, shearing and cutting or other measures of quality or performance.

6 OWNERSHIP AND RISK

6.1 All goods delivered to us (including goods for work to be performed on them or modifications to be carried out) and tooling supplied by you or manufactured by us for use in production remain your property and entirely at your risk in all respects both on and off our premises. Where we store your goods or tooling at our premises we do so as a gratuitous bailee and do not and are not obliged to hold insurance cover for those goods or tooling.

6.2 The common law possessory lien for payment for work undertaken is expressly confirmed and preserved.

6.3 Unless and until all moneys invoiced by us to you have been paid (whether overdue or not) you grant us a lien over:

6.3.1 Goods supplied by you to us for work to be undertaken and held by us pending work, in the course of work, or after the completion of work.

6.3.2 Where any work has been done and/or any materials have been supplied by you to us and finished items have subsequently been released to you after any further work by us, in respect of such released items.

6.4 We may exercise our lien by retaining or as necessary re-taking possession of all or any items in our discretion wherever the same are situated as long as the items are capable of independent identification, and we may sell the same by private treaty or by public auction. All proceeds of sale shall be applied to the amounts owing to us and upon receipt of payment any excess which has brought your account in credit shall forthwith be paid to you. The exercise by use of any of our rights as lien holder shall not constitute a waiver of any other rights contractual or otherwise, which we may have against you in respect of unpaid accounts.

6.5 All intellectual property in the manufacturing methods and know-how applied by us in carrying out works to your order shall be and remain ours. All other intellectual property in respect of works carried out to your order shall be and remain yours, except where you agree otherwise in writing.

6.6 In all events where technical specifications and/or design have been furnished by you to us:

6.6.1 You warrant that you have not infringed intellectual property of any third party in such technical specification and/or design.

6.6.2 We are not responsible for the performance of items produced or modified nor their suitability for any purpose.

6.7 You will keep as confidential and keep secret. and will ensure that your employees and agents keep as confidential and keep secret, all information relating to specifications, design or operation, and all intellectual property in respect of the same of which you become aware by virtue of your relationship with us. These confidentiality provisions shall not apply to the extent that information is required to be disclosed by law or legitimately enters the public domain. The obligations of this clause shall remain in full force and effect and survive the termination of business dealings between us.

6.8 All liens created under or pursuant to this agreement are security interests in terms of the Personal Property Securities Act 1999 and security interests may be registered by us in the Personal Property Securities Register at any time.

6.9 In the event of non-compliance with any of these terms and conditions for contract work, we or our agent may exercise any and all remedies given a secured party under Part 9 of the Personal Property Securities Act 1999 and enter any building or premises owned occupied or used by you to search for and retake possession of goods or other materials over which we have security interests.

7 DEFAULT

7.1 Where we consider you may be unable to meet your payment obligations to us, we may, without limiting or affecting our other rights and remedies, do all or any of the following:

7.1.1 Require you to stop selling or otherwise disposing of the goods or mixed goods or intellectual property which is saleable;

7.1.2 Demand payment of all or part of any sums due;

7.1.3 Require security for your obligations before we make any further supplies to you;

7.1.4 Without notice, withhold deliveries.

7.2 Where:

7.2.1 You are in breach of any of these terms and conditions (including failure to make payment on due date); or

7.2.2 You become insolvent or are adjudicated bankrupt or an application is made for your liquidation or a liquidator or a receiver is appointed in respect of your assets; or

7.2.3 You no longer carry on business or threaten to stop carrying on business; or

7.2.4 An arrangement is made or likely to be made with your creditors,

7.2.5 then, without limiting or affecting our other rights and remedies, we may do all or any of the following:

(a) Where you have failed to make payment on due date, require you to compensate us by making payment to us on demand of interest as liquidated damages on the amount due from the due date until the date of payment at a rate equal to ten (10) percent above the current overdraft rate which we have with our principal trading bank (in addition to you remaining liable for the full amount outstanding);

(b) Cancel this and any other contract of supply with you;

7.3 You will pay all costs and expenses (including costs on a solicitor/client basis and debt collectors’ costs) we incur in enforcing or attempting to enforce our rights under this clause and under the Personal Property Securities Act 1999. We may deduct any costs and expenses incurred from the proceeds of sale.

7.4 Your payments will be applied first in reduction of interest, liquidation damages and costs due under this clause, with the balance being applied in reduction of any amounts due under clause 3.

8 CLAIMS FOR DAMAGED OR DEFECTIVE GOODS

8.1 Subject to clauses 5, 6 and 11, we may, at our discretion, repair any damaged or defective goods or make a reasonable allowance on the purchase of goods to replace the goods provided:

8.1.1 You return the goods within seven (7) days of delivery at your cost, together with a copy of the invoice and a claim specifically identifying the damage or defect(s);

8.1.2 We have a reasonable opportunity to investigate the claim; and

8.1.3 You are not in default or breach.

8.2 If you do not comply with the above requirements, you will be deemed to have accepted the goods and we will not incur any liability whatsoever to you in relation to the goods.

9 LIMITATION OF LIABILITY

9.1 Without restricting the limitations of liability contained elsewhere in these terms and conditions, our liability is limited to the price of the goods in respect of which such liability arises. We have no further liability or responsibility for any direct, indirect or consequential injury, loss or damage of whatever type or however arising.

9.2 We are not responsible for any damage whatsoever caused either to the goods supplied or as a result of malfunction if:

9.2.1 Goods are fitted by unqualified tradespersons or are fitted in an unprofessional manner; or

9.2.2 Goods are adapted to a use for which they are not specifically intended or are used in an application for a longer period of time than the relevant minimum durability standard referred to in clause 6.3; or

9.2.3 Goods are added to or repaired using components not recommended or approved by us or the manufacturer; or

9.2.4 Goods are improperly stored or transported.

9.2.5 Work is performed or serves are provided by us according to your specifications and (in our sole discretion) the damage or malfunction is the direct result of the specification or your communication of the specification to us.

9.3 Where we have provided input into the design of any product or component which you have adopted or used, we have no liability for that design input. You are fully responsible for the design of any product or component and for ensuring the proper performance of such product or design, including any design input provided by us. You will indemnify us from any claim against us by any person relating to the design of any such product or component.

10 FORCE MAJEURE

10.1 We will not be in breach of these terms and conditions because of any failure on our part directly or indirectly due to wars, strikes, lockouts, delays or defaults of manufacturers or suppliers, acts of God or any other cause (whether similar or dissimilar) beyond our reasonable control.

11 GENERAL

11.1 You indemnify us against any liability for any direct, indirect or consequential injury, loss or damage arising out of any act, default or omission of, or any representation made by, you or your servants or agents.

11.2 If any of these terms or conditions is held by a Court to be ineffective because of non-registration, illegality or any other reason, then that term or condition or part of it will be severed from all other terms and conditions without affecting the validity or enforceability of all other terms and conditions or part of them.

11.3 No waiver by us of any term or condition will constitute a waiver of any other of these terms or conditions.

11.4 We may vary these terms and conditions at any time by notice in writing to you. You may not vary these terms and conditions unless we agree in writing.

11.5 The law of New Zealand shall govern these terms and conditions.

11.6 Any dispute or difference arising between you and us concerning the contract or its construction or interpretation shall be subject to arbitration by a sole arbitrator to be agreed upon between the parties or failing agreement to be appointed by the President of the Auckland District Law Society. Every arbitration shall be conducted under the provisions of the Arbitration Act 1996 and any statutory re-enactment or modification thereof.

11.7 NTD agree to store customer tooling at no cost to the customer. NTD will ensure that tooling is stored in racks (where possible) inside the building or in locked shipping containers outside the building. l NTD do not insure the tooling and customers need to arrange for their own insurance cover. Tooling that has not been used for 5 years will be stripped and dumped without notification.