TERMS & CONDITIONS OF TRADE
1. DEFINITIONS
1.1 “Atlas Gentech (NZ) Limited” shall mean Atlas Gentech (NZ) Limited, or any
agents or employees thereof.
1.2 “Customer” shall mean the Customer, any person acting on behalf of and with
the authority of the Customer, or any person purchasing products and services
from Atlas Gentech (NZ) Limited.
1.3 “Products” shall mean:
1.3.1 all Products of the general description specified on the front of this
agreement and supplied by Atlas Gentech (NZ) Limited to the
Customer; and
1.3.2 all Products supplied by Atlas Gentech (NZ) Limited to the Customer;
and
1.3.3 all inventory of the Customer that is supplied by Atlas Gentech (NZ)
Limited; and
1.3.4 all Products supplied by Atlas Gentech (NZ) Limited and further
identified in any invoice issued by Atlas Gentech (NZ) Limited to the
Customer, which invoices are deemed to be incorporated into and form
part of this agreement; and
1.3.5 all Products that are marked as having been supplied by Atlas Gentech
(NZ) Limited or that are stored by the Customer in a manner that
enables them to be identified as having been supplied by Atlas
Gentech (NZ) Limited; and
1.3.6 all of the Customer’s present and after-acquired Products that Atlas
Gentech (NZ) Limited has performed work on or to or in which goods
or materials supplied or financed by Atlas Gentech (NZ) Limited have
been attached or incorporated.
1.3.7 The above descriptions may overlap but each is independent of and
does not limit the others.
1.4 “Products” shall also mean all products, goods, software, services and advice
provided by Atlas Gentech (NZ) Limited to the Customer and shall include
without limitation the supply of security products and all charges for labour, hire
charges, insurance charges, or any fee or charge associated with the supply of
Products by Atlas Gentech (NZ) Limited to the Customer.
1.5 “Price” shall mean the cost of the Products as agreed between Atlas Gentech
(NZ) Limited and the Customer and includes all disbursements eg charges
Atlas Gentech (NZ) Limited pay to others on the Customer's behalf subject to
clause 3.1 of this contract, but shall exclude any applicable Goods & Services
Tax which the Products may be subject to and any freight charges that the
Customer shall be liable for.
2. ACCEPTANCE
2.1 Any instructions received by Atlas Gentech (NZ) Limited from the Customer for
the supply of Products or the receipt of Products by the Customer shall
constitute a binding contract and acceptance of the terms and conditions
contained herein. These terms and conditions apply to all sales of Products by
Atlas Gentech (NZ) Limited and shall prevail over any terms or conditions
referred to in the Customer's order (if any) or in correspondence or elsewhere
unless specifically agreed to in writing by Atlas Gentech (NZ) Limited and
expressed to form part of the contract and any conditions or stipulations to the
contrary are hereby excluded or rejected.
3. COLLECTION AND USE OF INFORMATION
3.1 The Customer authorises Atlas Gentech (NZ) Limited to collect, retain and use
any information about the Customer, for the purpose of assessing the
Customer’s credit worthiness, enforcing any rights under this contract, or
marketing any Products provided by Atlas Gentech (NZ) Limited to any other
party.
3.2 The Customer authorises Atlas Gentech (NZ) Limited to disclose any
information obtained to any person for the purposes set out in clause 3.1.
3.3 Where the Customer is a natural person the authorities under clauses 3.1 and
3.2 are authorities or consents for the purposes of the Privacy Act 1993.
3.4 Upon Atlas Gentech (NZ) Limited’s request at any time, the Customer shall
provide Atlas Gentech (NZ) Limited, within ten (10) business days, the
Customer’s most current regularly-prepared financial statements, including,
without limitation, a full and complete statement of the Cutomer’s current assets
and liabilities.
4. PRICE
4.1 Subject always to clause 4.2 of this agreement, where no price is stated in
writing or agreed to orally the Products shall be deemed to be sold at the current
amount as such Products are sold by Atlas Gentech (NZ) Limited at the time of
the contract.
4.2 The price may be increased by the amount of any reasonable increase in the
cost of supply of the Products that is beyond the control of Atlas Gentech (NZ)
Limited between the date of the contract and delivery of the Products, including
but not limited to, any increase in the cost of raw materials or labour, and any
variation in exchange rates.
5. PAYMENT
5.1 Payment for Products shall be made in full on or before the 20
th
day of the
month following the date of the invoice (“the due date”).
5.2 Interest may be charged on any amount owing after the due date at the rate of
2.5% per month or part month.
5.3 Any expenses, disbursements and legal costs incurred by Atlas Gentech (NZ)
Limited in the enforcement of any rights contained in this contract shall be paid
by the Customer, including any reasonable solicitor’s fees or debt collection
agency fees.
5.4 Receipt of a cheque, bill of exchange, or other negotiable instrument shall not
constitute payment until such negotiable instrument is paid in full.
5.5 Upon approval of the Customer’s credit account application, Atlas Gentech
(NZ) Limited, in its sole and absolute discretion, will assign the Customer a
maximum credit line and shall have the right to increase, decrease, modify,
suspend, cancel or terminate the Customer’s credit privileges or to require
guarantees, security, or payment at any time without prior notice to the
Customer, except as otherwise provided by law.
6. QUOTATION
6.1 Where a quotation is given by Atlas Gentech (NZ) Limited for Products:
6.1.1 Unless otherwise agreed the quotation shall be valid for thirty (30) days
from the date of issue; and
6.1.2 The quotation shall be exclusive of goods and services tax and any
freight charges that the Customer shall be liable for, unless specifically
stated to the contrary;
6.1.3 Atlas Gentech (NZ) Limited
re
serve the right to alter the quotation
because of circumstances beyond its control.
6.1.4 Any quotation issued by Atlas Gentech (NZ) Limited shall always be
subject to the terms of this agreement.
6.2 Where Products are required in addition to the quotation the Customer agrees
to pay for the additional cost of such Products.
7. RISK
7.1 The Products remain at Atlas Gentech (NZ) Limited’ risk until delivery to the
Customer.
7.2 Delivery of Products shall be deemed complete when Atlas Gentech (NZ)
Limited gives possession of the Products directly to the Customer or
possession of the Products is given to a carrier, courier, or other bailee for
purposes of transmission to the Customer.
7.3 The time agreed for delivery shall not be an essential term of this contract.
8. TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999)
8.1 Title in any Products supplied by Atlas Gentech (NZ) Limited passes to the
Customer only when the Customer has made payment in full for all Products
provided by Atlas Gentech (NZ) Limited and of all other sums due to Atlas
Gentech (NZ) Limited by the Customer on any account whatsoever. Until all
sums due to Atlas Gentech (NZ) Limited by the Customer have been paid in
full, Atlas Gentech (NZ) Limited has a security interest in all Products.
8.2 If the Products are attached, fixed, or incorporated into any property of the
Customer, by way of any manufacturing or assembly process by the Customer
or any third party, title in the Products shall remain with Atlas Gentech (NZ)
Limited until the Customer has made payment for all Products, and where those
Products are mixed with other property so as to be part of or a constituent of
any new Products, title to these new Products shall deemed to be assigned to
Atlas Gentech (NZ) Limited as security for the full satisfaction by the Customer
of the full amount owing between Atlas Gentech (NZ) Limited and Customer.
8.3 The Customer gives irrevocable authority to Atlas Gentech (NZ) Limited to
enter any premises occupied by the Customer or on which Products are
situated at any reasonable time after default by the Customer or before default
if Atlas Gentech (NZ) Limited believes a default is likely and to remove and
repossess any Products and any other property to which Products are attached
or in which Products are incorporated. Atlas Gentech (NZ) Limited shall not be
liable for any costs, damages, expenses or losses incurred by the Customer or
any third party as a result of this action, nor liable in contract or in tort or
otherwise in any way whatsoever unless by statute such liability cannot be
excluded. Atlas Gentech (NZ) Limited may either resell any repossessed
Products and credit the Customer’s account with the net proceeds of sale (after
deduction of all repossession, storage, selling and other costs) or may retain
any repossessed Products and credit the Customer’s account with the invoice
value thereof less such sum as Atlas Gentech (NZ) Limited reasonably
determines on account of wear and tear, depreciation, obsolescence, loss or
profit and costs.
8.4 Where Products are retained by Atlas Gentech (NZ) Limited pursuant to clause
8.3 the Customer waives the right to receive notice under s.120 of the Personal
Property Securities Act 1999 (“PPSA”) and to object under s.121 of the PPSA.
8.5 The following shall constitute defaults by the Customer:
8.5.1 Non payment of any sum by the due date.
8.5.2 The Customer intimates that it will not pay any sum by the due date.
8.5.3 Any Products are seized by any other creditor of the Customer or any
other creditor intimates that it intends to seize Products.
8.5.4 Any Products in the possession of the Customer are materially
damaged while any sum due from the Customer to Atlas Gentech (NZ)
Limited remains unpaid.
8.5.5 The Customer is bankrupted or put into liquidation or a receiver is
appointed to any of the Customer’s assets or a landlord distrains
against any of the Customer’s assets.
8.5.6 A Court judgment is entered against the Customer and remains
unsatisfied for seven (7) days.
8.5.7 Any material adverse change in the financial position of the Customer.
8.6 The Customer shall execute and deliver to Atlas Gentech (NZ) Limited, at any
time and from time to time, all agreements, instruments, documents and other
written matter that Atlas Gentech (NZ) Limited may request, in form and
substance acceptable to Atlas Gentech (NZ) Limited, to perfect and maintain
perfected Atlas Gentech (NZ) Limited’s priority security interest and lien in and
to the Products and/or other lien or bond rights provided herein, and to
otherwise consummate the transactions contemplated by this clause.
9. PAYMENT ALLOCATION
9.1 Atlas Gentech (NZ) Limited may in its discretion allocate any payment received
from the Customer towards any invoice that Atlas Gentech (NZ) Limited
determines and may do so at the time of receipt or at any time afterwards and
on default by the Customer may reallocate any payments previously received
and allocated. In the absence of any payment allocation by Atlas Gentech (NZ)
Limited, payment shall be deemed to be allocated in such manner as preserves
the maximum value of Atlas Gentech (NZ) Limited’ purchase money security
interest in the Products.
10. DISPUTES AND RETURN OF PRODUCTS
10.1 No claim relating to the Products will be considered unless made within forty-
five (45) days of delivery.
10.2 No Products will be accepted for return without prior approval of Atlas Gentech
(NZ) Limited. A 15% restocking fee may apply. Any Products considered for
return must be in original packaging and undamaged.
10.3 All products returned must be accompanied by original invoice or packing slip.
11. LIABILITY
11.1
The Consumer Guarantees Act 1993, the Fair Trading Ac
t 1986 and other
statutes may imply warranties or conditions or impose obligations upon Atlas
Gentech (NZ) Limited which cannot by law (or which can only to a limited extent
by law) be excluded or modified. In respect of any such implied warranties,
conditions or terms imposed on Atlas Gentech (NZ) Limited, Atlas Gentech
(NZ) Limited’ liability shall, where it is allowed, be excluded or if not able to be
excluded only apply to the minimum extent required by the relevant statute.
11.2 Except as otherwise provided by clause 11.1 Atlas Gentech (NZ) Limited shall
not be liable for any loss or damage of any kind whatsoever, arising from the
supply of Products by Atlas Gentech (NZ) Limited to the Customer including
incidental, consequential, indirect loss, punitive or other special damages,
including lost or corrupt data, lost revenues or lost profits, whether suffered or
incurred by the Customer or another person and whether in contract or tort
(including negligence) or otherwise and irrespective of whether such loss or
damage arises directly or indirectly from Products provided by Atlas Gentech
(NZ) Limited to the Customer, even if the loss or damage was foreseeable or
Atlas Gentech (NZ) Limited may have been advised of the possibility of such
damages.
11.3 The Customer shall indemnify and keep Atlas Gentech (NZ) Limited and its
affiliates indemnified against any claim or liability (including reasonable legal
fees and expenses on a full indemnity basis) arising from or in connection with
any breach or non-compliance with any of its covenants, representations,
undertakings or obligations under these terms and conditions.
11.4 Without prejudice to clauses 11.1 and 11.2 above, Atlas Gentech (NZ) Limited's
maximum aggregate liability (including any liability for the acts or omissions of
its employees, agents and sub-contractors) to the Customer whether for tort
(including negligence or breach of statutory duty), breach of contract (including
deliberate, repudiatory breach by Atlas Gentech (NZ) Limited),
misrepresentation, restitution or otherwise shall in no circumstances exceed
the purchase price of the relevant Products which give rise to such liability, as
determined by the net price invoiced to the Customer.
12. WARRANTY
12.1 Manufacturer’s warranty applies where applicable, provided that any warranty
does not cover normal wear and tear and shall not apply to the Products which
have been subjected to misuse or abuse, neglect, accident, damage, improper
storage, improper installation, use or maintenance, or a malfunction caused by
any equipment or software not provided by Atlas Gentech (NZ) Limited. This is
the only warranty provided by Atlas Gentech (NZ) Limited for the Products. This
warranty is conditioned upon the Customer providing Atlas Gentech (NZ)
Limited prompt written notice of the Product’s failure to perform in accordance
with its specifications.
12.2 Atlas Gentech (NZ) Limited makes no warranty, representation or guarantee
that any Product’s use or performance, or that the operation of the Products will
be fail-safe, uninterrupted or free from error or defects, free from cyber threats
or events or be compatible with any other product, software or system. The
Customer agrees to be bound by and comply with and ensure that its customers
comply, at all times, with any license terms pertaining to Products sold by Atlas
Gentech (NZ) Limited to it.
12.3 Subject to clauses 12.1 and 12.2, if the Products do not comply with the
manufacturer’s warranties, the Customer’s exclusive remedy and Atlas
Gentech (NZ) Limited’s sole obligation and liability for any warranty failure or
breach including breach of warranty or consumer guarantee that cannot be
excluded by law is for Atlas Gentech (NZ) Limited, at its option, to replace or
repair such Products free of charge or refund the price of such Products
provided that, if Atlas Gentech (NZ) Limited so requests, the Customer shall, at
the Customer’s expense, return the Products or the part of such Products which
is defective to Atlas Gentech (NZ) Limited.
12.4 Except for the warranty above, Products are provided “as is”. Unless otherwise
stated above and to the fullest extent permitted by law, Atlas Gentech (NZ)
Limited does not make any other representations or warranties of any kind
regarding the Products and they disclaim all other obligations and liabilities,
either express or implied, including but not limited to the implied warranties of
merchantability, quality, fitness for a particular purpose, title or non-
infringement. The entire risk arising out of the use or performance of the
Products remains with the Customer. The Products may contain or be
integrated with independent third-party products and rely on them to perform
certain functionality. Atlas Gentech (NZ) Limited makes no warranty as to the
operation of any third-party products or the accuracy of any third-party
information.
12.5 The Customer acknowledges that Products may fail and is not designed,
developed, tested, licensed or intended for use in the design, construction,
operation, maintenance, security or protection of High Risk Facilities. Atlas
Gentech (NZ) Limited has no responsibility for, and the Customer indemnifies
and holds harmless Atlas Gentech (NZ) Limited from all claims, suits, demands,
proceedings, liability, losses, damages, penalties, judgements, awards,
expenses including legal costs and expenses on a full indemnity basis arising
from or in connection with the Customer’s use, deployment and/or sale of
Products in relation to High Risk Facilities. ‘High Risk Facilities” means a facility
that requires extra safety functionalities such as fail-safe, fault tolerant
performance features to maintain 100% security where it is reasonably
forseeable that failure or compromise of security system to the facility could
lead to death, personal injury or catastrophic property damage which may
include but are not limited to critical infrastructure, industrial plants,
manufacturing facilities, direct life support devices, aircrafts, trains, boats or
other transportation vehicles, vehicle navigation or communications systems,
air traffic control, weapons systems or facilities, nuclear facilities, power plants,
medical systems and facilities and transportation facilities.
13. CONSUMER GUARANTEES ACT
13.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded
where the Customer acquires Products from Atlas Gentech (NZ) Limited for the
purposes of a business in terms of section 2 and 43 of that Act.
14. PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES
14.1 If the Customer is a company or trust, the director(s) or trustee(s) signing this
contract, in consideration for Atlas Gentech (NZ) Limited agreeing to supply
Products and grant credit to the Customer at their request, also sign this
contract in their personal capacity and jointly and severally personally
undertake as principal debtors to Atlas Gentech (NZ) Limited the payment of
any and all monies now or hereafter owed by the Customer to Atlas Gentech
(NZ) Limited and indemnify Atlas Gentech (NZ) Limited against non-payment
by the Customer. Any personal liability of a signatory hereto shall not exclude
the Customer in any way whatsoever from the liabilities and obligations
contained in this contract. The signatories and Customer shall be jointly and
severally liable under the terms and conditions of this contract and for payment
of all sums due hereunder.
15. CANCELLATION
15.1 Atlas Gentech (NZ) Limited shall, without any liability, and without any prejudice
to any other right it has in law or equity, have the right by notice to suspend or
cancel in whole or in part any contract for the supply of Products to the
Customer if the Customer fails to pay any money owing after the due date or
the Customer commits an act of bankruptcy as defined in section 19 of the
Insolvency Act 1967.
15.2 Any cancellation or suspension of this agreement shall not affect Atlas Gentech
(NZ) Limited’ claim for money due at the time of cancellation or suspension or
for damages for any breach of any terms of this contract or the Customer’s
obligations to Atlas Gentech (NZ) Limited under this contract.
16. MISCELLANEOUS
16.1 Atlas Gentech (NZ) Limited shall not be liable for delay or failure to perform its
obligations if the cause of the delay or failure is beyond its control.
16.2 Failure by Atlas Gentech (NZ) Limited to enforce any of the terms and
conditions contained in this contract shall not be deemed to be a waiver of any
of the rights or obligations Atlas Gentech (NZ) Limited has under this contract.
16.3 If any provision of this contract shall be invalid, void or illegal or unenforceable
the validity existence, legality and enforceability of the remaining provisions
shall not be affected, prejudiced or impaired.
16.4 These terms and conditions are governed by the laws of New Zealand and any
dispute arising hereunder shall be subject to the exclusive jurisdiction of the
courts in Auckland.
16.5 The Customer shall immediately notify Atlas Gentech (NZ) Limited of any
agreement to sell or otherwise transfer ownership or possession of more than
20% of the assets or business of the Customer, or to sell more than 20% of the
capital stock or other ownership interest of the Customer.
16.6 Products may be subject to export controls under the laws, regulations and/or
directive of the United States and other countries, in which case, these
Products are only authorized for use (e.g., via a government-approved and
issued export license, which the Customer must obtain) by the ultimate end-
user in the destination identified in the transaction documents between Atlas
Gentech (NZ) Limited and the Customer. The Customer will not export, re-
export or transfer, or cause a deemed export or re-export of the Products (in
their original form or after being incorporated into other items) to any county or
person to which/whom export, re-export or transfer (actual or deemed) is
prohibited without first obtaining all required authorizations or licenses. To the
extent permitted by law, the Customer will indemnify and hold Atlas Gentech
(NZ) Limited harmless from any loss or damage arising from its violation of any
such laws, rules, and regulations. Furthermore, the Customer will not use,
transfer or access any Products or services for end use relating to any nuclear,
chemical or biological weapons, or missile technology unless authorized by the
manufacturer and the U.S. Government by regulation or specific license
