Terms and Conditions of Trade
“Contract” means the contract for sale by Magritek to the Customer of the goods and/or services formed in accordance with clause 2.
“Customer” means the purchaser of goods or services from Magritek.
“Magritek” means Magritek Limited.
“Purchase Order Acceptance” or “POA” means the written acceptance of a Customer’s order issued by Magritek.
“Terms and Conditions” mean these Terms and Conditions of Trade, as amended from time to time by Magritek.
“Warranty Period” means the period of 1 year from the date of delivery of the goods or, where the goods are installed by Magritek, 1 year from the date that installation is complete, or such other period as is expressly stated in the POA.
2. Formation and terms of Contract
2.1. No Contract shall come into existence until Magritek accepts a Customer’s order for goods or services by issuing a Purchase Order Acceptance.
2.2. These Terms and Conditions shall be incorporated into every Contract, except to the extent expressly varied in a Purchase Order Acceptance.
2.3. These Terms and Conditions prevail over any other terms and conditions stipulated or referred to by the Customer.
3.1. A quotation does not give rise to a binding contract between the Customer and Magritek.
3.2. Unless otherwise stated in writing or withdrawn, a quotation is valid for a period of ninety (90) days from the date of the quotation.
3.3. The Customer acknowledges and agrees that a quotation is based on information provided by the Customer. The Customer is solely responsible for the accuracy of any information so provided.
3.4. If the Customer notifies Magritek of any change to its information or to the goods or services required by the Customer after the date of the quotation, Magritek may withdraw and replace the quotation.
4.1. The price shall be increased by the amount of any GST and other taxes and duties which may be applicable except to the extent that such taxes and duties are expressly included in any POA.
4.2. The Customer acknowledges that it is liable for :
4.2.1 All taxes and duties (such as import and customs duties) not expressly included in the POA; and
4.2.2. The price of the goods notwithstanding any delay or other difficulty relating to the import of the goods arising from a breach by the Customer of the Contract (including non-payment of any taxes and duties referred to in clause 4.2.1).
5. Customer’s obligations
5.1. The Customer is responsible for obtaining, at its cost, every necessary or prudent authorisation (including licences, permits and consents) to buy, import, possess or use import any goods or services supplied or provided by Magritek.
5.2. If the Contract provides for installation of goods by Magritek, the Customer shall provide suitable premises, necessary services and amenities for the safe and lawful installation of the goods by Magritek’s staff as specified in writing by Magritek. If the Customer does not comply with its obligation under this clause 5.2, the Customer will be liable for, and Magritek may charge the Customer for, the lost time of Magritek’s staff.
6. Terms of Payment
6.1. The Customer must pay the purchase price for the goods or services within 7 days of the issue of the POA, unless Magritek, at its sole discretion, decides to permit:
6.1.1. the Customer to pay a deposit (of such amount as Magritek determines) within 7 days of the issue of the POA and the balance in full within 30 days of the date of Magritek’s invoice; or
6.1.2. the Customer to pay the purchase price in full within 30 days of the date of Magritek’s invoice.
6.2 If clause 6.1.1 or 6.1.2 will apply, Magritek will use its best endeavours to notify the Customer of the proposed payment terms either in Magritek’s quotation or prior to the Customer placing its order.
6.3. Magritek will issue its invoice upon the goods being shipped or on completion of the performance of the services (as the case may be).
6.4. The Customer authorises Magritek to obtain such reports from a credit reporting agency relating to the Customer and any guarantors as Magritek considers necessary.
6.5. Payments shall be made by telegraphic transfer/Swift MT103 or by provision of a Letter of Credit. Bank account details for payment are detailed in the Invoice and on Magritek’s website.
6.6. Any Letter of Credit must be in the standard format provided by Magritek, a copy of which is on Magritek’s website, and will incur an additional processing fee. Details of the relevant Letter of Credit fees are contained on Magritek’s website.
6.7. All sums not paid when due shall accrue interest daily at the rate which is 2% per annum above the rate charged by Magritek’s bankers for unsecured overdraft facilities as at the due date for payment on the unpaid balance until paid in full.
7.1. Goods will be delivered DAP (Delivery at Place) (Incoterms 2010) to the destination agreed between the Customer and Magritek.
7.2. Magritek will use its best endeavours to cause the goods or services to be delivered to the Customer by the date specified in the POA. However, any dates so stated are estimates only, and Magritek does not guarantee a particular delivery date. Magritek shall not be liable for any delay in delivery of the goods or services, however caused, and a failure to delivery by a particular date shall not entitle the Customer to cancel its order.
7.3. Goods will be packed for shipment in accordance with Magritek’s standard practices.
8. Risk and Property
8.1. Until payment has been made of the price for the goods and other monies due by the Customer to Magritek at the time the payment for any goods falls due, the property in the goods shall remain Magritek’s and the Customer shall hold the goods as Magritek’s fiduciary agent and bailee, stored separately from those belonging to the Customer and properly labelled, protected, treated and insured.
8.2. If the Customer is resident in New Zealand, the Customer acknowledges that Magritek shall have a security interest in the goods and any proceeds of the goods (both being “Collateral”) until such time as payment in full has been made (as set out in clause 8.1) and the following provisions shall apply with respect to the Collateral:
8.2.1. Magritek may at any time register a financing statement in respect of all or any of the Collateral and the Customer waives its right to receive a copy of a verification statement in respect of any financing statement;
8.2.2. the Customer will, at Magritek’s request, provide all information necessary to enable Magritek to perfect its interest in the Collateral;
8.2.3. the Customer will not sell or dispose of any of the Collateral or permit any other person to have or obtain a security interest in any of the Collateral;
8.2.4. if the Customer is in breach of any of its obligations in respect of the Collateral:
18.104.22.168. it will promptly upon receiving a written request from Magritek, at its own cost and expense, deliver all or any of the Collateral to Magritek at such place or places as Magritek directs; and
22.214.171.124. if the Customer fails to deliver any of the Collateral as required under these Terms, Magritek may at any time, either itself or through an authorised agent, enter into any place where the Collateral is located and remove the Collateral.
8.3. Terms used in this clause which are used in the Personal Property Securities Act 1999 shall have the same meaning as in that Act.
9. Acceptance of Goods and Services
9.1. Where the Customer is responsible for installing the goods or where the goods do not require installation, the Customer shall inspect and test the goods within 7 days of delivery, and shall give Magritek written notice of any damage or claim within that period.
9.2. Where Magritek is responsible for installing the goods, the Customer shall:
9.2.1. not open any package containing the goods; and
9.2.2. inspect the outside of the packaging when received and make notes to the shipping receipts if any damage is found and report that damage to Magritek; and
9.2.3. inspect and test the goods within 7 days of the completion of the installation services, and give Magritek written notice of any damage or claim within that period.
9.3. Unless the Customer notifies Magritek in writing of any claim or damage within the period set out in clauses 9.1 or 9.2, the goods and services shall be deemed to have been accepted by the Customer as being in good condition and in accordance with the Contract.
10.1. The goods are sold on the basis that there is no right of return.
10.2. Notwithstanding clause 10.1, Magritek may, on a case by case basis as its sole discretion accept a return of goods if:
10.2.1. the Customer requests that Magritek accept a return of the goods within 30 days of delivery;
10.2.2. the goods in question are part of Magritek’s usual stock-in-trade and are not custom made;
10.2.3. the goods are in the same condition as when delivered; and
10.2.4. the Customer agrees to pay all costs in relation to the return of the goods.
11. Intellectual Property and Software Licence
11.1. The Customer acknowledges and agrees that all intellectual property rights in the goods or services supplied by Magritek (including in any software and in any documentation supplied) are and remain the property of Magritek. Nothing in these Terms and Conditions confers any rights of ownership in such intellectual property on the Customer.
11.2. Without limiting clause 111, any documentation supplied by Magritek (“Magritek Documentation”) may not be copied, reproduced, modified or disclosed to any third party without the prior written consent of Magritek.
11.3. The Customer acknowledges that its use of any software included in or provided with the goods or services is subject to the terms of the Software License Agreement., or, in the case of third party software, the software licence provided with the software, a copy of which is on our website.
11.4. The Customer must:
11.4.1. take all reasonable steps to ensure the confidentiality of the Magritek Documentation until it is in the public domain;
11.4.2. ensure that its officers, employees and agents do not disclose or copy any part of the Magritek Documentation, except as permitted by this clause;
11.4.3. not transfer, assign or otherwise deal in the Magritek Documentation; and
11.4.4. notify Magritek in writing immediately if the Customer has knowledge of any circumstances that may suggest that any person may have unauthorised knowledge, possession or access to the Magritek Documentation.
12. Warranty and indemnity
12.1. Subject to clause 12.2, Magritek warrants to the Customer that the goods manufactured and supplied by Magritek will continue to perform to the same standard as the goods performed when tested by Magritek for the Warranty Period.
12.2. Magritek will not be liable for breach of the warranty in clause 12.1 where the failure to comply with the warranty results from:
12.2.1. damage (whether accidental or otherwise) to the goods occurring after delivery to the Customer;
12.2.2. any failure to use, store or maintain the goods in accordance with any written instructions provided by Magritek (including in any product manual);
12.2.3. any unauthorised alteration of or modification to the goods by the Customer or any third party;
12.2.4. any attempt by any person other than Magritek personnel or any person authorised by Magritek, to adjust, repair or support the goods;
12.2.5. the use of the goods in combination with parts, components, equipment, programs or services not authorised by Magritek;
12.2.6. the use of the goods other than in the operating environment recommended by Magritek or otherwise than in accordance with Magritek’s directions.
12.3. If any goods fail to comply with the warranty in clause 12.1 during the Warranty Period, Magritek’s liability to the Customer is limited to replacement or repair (at Magritek’s sole discretion) of the relevant goods.
12.4. The Customer shall be responsible for delivering the goods the subject of the warranty to Magritek at the Customer’s cost.
12.5. If the goods are found by Magritek:
12.5.1. to be defective, Magritek will reimburse the Customer for the costs of delivery of the goods to Magritek, and ship the repaired or replacement goods to the Customer at Magritek’s cost; and
12.5.2. not to be defective, Magritek will ship the goods to the Customer at the Customer’s cost.
12.6. The warranty set out in clause 12.1 is given in place of all excludable warranties, conditions, terms, undertakings and obligations implied by statute, common law, trade usage, course of dealing or otherwise including warranties or conditions of merchantability, fitness for purpose, satisfactory quality or compliance with description, all of which are excluded to the fullest extent permitted by law.
12.7. Without limiting the foregoing, for the purposes of Article 35 of the United Nations Convention on Contracts for the International Sale of Goods, the parties agree that the goods will not conform to the Contract only if the goods do not meet the warranty set out in clause 12.1, and not otherwise.
12.8. The warranty set out in clause 12.1 does not apply to goods manufactured by third parties and supplied to the Customer by Magritek (“Third Party Products”). To the extent permitted by law, Magritek makes no warranties or representations about, and disclaims any and all liability relating to, any Third Party Product. Any enquiries or claims should be directed to the Third Party Product manufacturer.
12.9. The Customer agrees that it is acquiring the goods and services for the purposes of a business, so that the Consumer Guarantees Act 1993 (New Zealand) does not apply.
12.10. Subject to clause 14, Magritek hereby agrees to indemnify the Customer against, and hold the Customer harmless from and against all actions, proceedings, claims, demands, costs and expenses (including reasonable legal fees on a solicitor and client basis) howsoever suffered or incurred by the Customer as a result of any breach of the Contract by Magritek.
13. Customer warranties and indemnity
13.1. The Customer warrants and represents that:
13.1.1. the information provided in support of any application by it for a credit account is complete and accurate; and
13.1.2. it is buying the goods or services for its own use and not for re-sale to any person.
13.2. Subject to clause 14, the Customer hereby agrees to indemnify Magritek against, and hold Magritek harmless from and against all actions, proceedings, claims, demands, costs and expenses (including reasonable legal fees on a solicitor and client basis) howsoever suffered or incurred by Magritek as a result of any breach of the Contract by the Customer.
14. Limitation of liability
14.1 A party shall not be liable for:
14.1.1. any indirect loss or damage (including without limitation loss of profits or savings or for any indirect or consequential loss or damage), however caused, arising out of or in connection with the performance of the goods or services or the Contract; and
14.1.2. except in relation to a breach of clause 11, more than $10,000 in total irrespective of the number of claims.
15. Force Majeure
15.1 Magritek is not in breach of the Contract and is not liable for any delay or reduction in providing the goods or services (or inability to provide the goods or services) caused by any Force Majeure Event.
15.2. In this clause, a Force Majeure Event means an event or circumstance beyond Magritek’s reasonable control, including fire, floods, storms, tempest, earthquake or other act of God, any act of a public enemy, war, riot, terrorism, acts of civil or military authority, any act of a person engaged in subversive activity or sabotage, epidemics or quarantine restrictions, failure or defect of electrical power or telecommunications connections or services, prohibition or restrictions on the import or export of goods or services, industrial and labour disputes or stoppages or any act or omission (including laws, regulations, disapprovals or failures to approve) of any governmental agency.
16. Governing Law
The Contract shall be governed by the laws of New Zealand. The Customer submits to the non-exclusive jurisdiction of the courts of New Zealand in relation to any proceedings in connection with these Terms and Conditions, the Contract or the purchase of goods or services from Magritek.
If any provision of these Terms and Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, then that provision will be read down or severed and that invalidity or unenforceability does not affect the validity or enforceability of the remaining terms.