Gencom Technology Terms and Conditions
(1.1) The Gencom Technology company (“the Seller”) and the customer (“the Buyer”) that are named in the attached agreement or quote agree that the Seller will supply and the Buyer will purchase the goods and services as described in the attached agreement or quote on the following terms and conditions and any terms and conditions in the attached agreement or quote (together the “Agreement”) to the exclusion of any other terms.
(1.3) Any attached document or quote may be amended or withdrawn in the event of error or mis-description, by the Seller giving written notice to the Buyer at any time prior to acceptance of the document or quote by the Buyer.
(2.1) Prices are expressed in the currency specified on the attached agreement or quote (“Sell Currency”) and must be paid in the Sell Currency.
Where prices are expressed in foreign currency, sales taxes such as GST or VAT will be charged in the currency required by the applicable legislation, and where applicable will be converted to the currency required by the applicable legislation at the rate prevailing at the date of the original source currency invoice.
3. Exchange Rate Variations
The Seller will cover variations of up to +/-3% of the quoted exchange rate. Any variation greater than +/-3% between the quoted exchange rate and bank sell exchange rate at date of invoice shall be applied to the Buyer’s account resulting in an extra cost in the event of a less favourable rate or a credit in the event of a more favourable rate.
The Buyer accepts the bank sell exchange rate applicable at the date of the invoice as notified by the Seller.4. Terms and Payments
Payment terms will be as specified in the attached agreement or quote, and if not otherwise specified the remainder of this clause applies:
(4.1) Approved Credit Account Holders
If the Buyer is an approved credit account holder and places an order in which the value of the order is:
(4.1.1) within the Buyer’s approved credit limit then the Buyer must pay for their ordered goods and services in full within 30 days following invoice date.
(4.1.2) in excess of the Buyer’s approved credit limit then the Buyer must pay a deposit of 20% of the value of their order when placing the order and pay the balance of 80% on or before delivery. The Seller may withhold delivery until payment is received and charge the Buyer any additional storage, transportation, re-delivery or other costs incurred as a result of late payment.
(4.2) Non Account Holders
If the Buyer is not an approved credit account holder and places an order then the Buyer must pay a deposit of 20% of the value of their order when placing the order and pay the balance of 80% prior to shipment from the Seller’s store. The Seller may withhold shipment until payment is received and charge the Buyer any additional storage, transportation or other costs incurred as a result of late payment.
All orders are subject to acceptance by the Seller.
If any of the invoiced amounts from the Buyer to the Seller (that are not the subject of a dispute) remain unpaid for a period of 31 days after receipt of the invoice by the Buyer then the Seller has the right to suspend delivery of goods and services to the Buyer by as many days as the said payments are overdue, provided however that the payment delay is not caused by the Seller. The Seller will also be entitled to charge the Borrower interest on any unpaid amount at the rate 2% above the commercial overdraft rate of the Seller’s trading bank from the due date to date of payment.
Any action under this clause 4 will be without prejudice to the Seller’s rights and remedies for the late payment.5. Taxes and Duties
The quoted prices do not include GST, VAT or any other taxes, duties or levies and such amounts are payable by the Buyer in addition to the quoted prices.6. Loss or Damage
The risk of any loss or damage to or deterioration of goods shall pass to the Buyer when the said goods are collected from the Seller’s store or from the manufacturer by the Buyer or the Buyer’s agent or if the Seller is delivering then when the goods are delivered by the Seller to the Buyer’s premises.7. Property
Ownership in goods supplied shall pass to the Buyer when full payment has been received by the Seller. Until ownership passes to the Buyer, the Buyer will hold the goods as bailee for the Seller, with the Seller having the right to enter premises occupied by the Buyer and take possession of the goods at any time after payment is due. If the Buyer re-sells the goods before such payment is made it shall hold the sale proceeds on trust for and on account of the Seller.8. Order Cancellation
Orders for goods being indented for the Buyer by the Seller may not be cancelled without prior consent in writing by the Seller. A cancellation fee of a minimum of 20% of the selling price to the Buyer will apply on approval of order cancellation.9. Goods Returned for Credit
Goods indented specifically for a Buyer will not be accepted for credit under any circumstances. Goods supplied from stock will only be accepted for credit if specific permission has been granted following an appraisal of the circumstances and condition of goods. Any stock goods accepted for credit will incur a minimum 20% restocking cost.10. Exclusion from Liability
(10.1) The Seller will not be liable for:
(10.1.1) Delivery delays beyond the estimated delivery date. The Seller will take every effort to ensure timely delivery but on occasions circumstances beyond the Sellers' control preclude this.
(10.1.2) Non-compatibility of equipment used in conjunction with equipment not supplied by the Seller, and non-compatibility of equipment supplied by the Seller but not system designed and integrated by the Seller.
(10.1.3) Personal injury or property damage arising from the use of equipment supplied by the Seller.
(10.2) Under no circumstances shall the Seller be liable for economic loss, including any loss of profits, or for any special, or consequential damage of any loss arising from any cause.
(10.3) The liability of the Seller arising from or in relation to this Agreement will be limited to the lesser of:
(10.3.1) the amounts paid by the Buyer in the 12 months preceding the event giving rise to the liability; or
(10.3.2) the amounts paid by the Buyer for the goods or services giving rise to the liability.11. Product Warranty
(11.1) The Buyer acknowledges that goods that are supplied under this Agreement are manufactured by third parties. The Seller will take all steps within its power to assign to the Buyer the benefit of the third party manufacturer warranties which are generally 12 month warranties. Any warranties or representations from the Seller in relation to the goods cannot exceed the warranties or representations given by the manufacturer.
(11.2) The Buyer should be aware that the manufacturer warranty may not extend to products which have been subject to misuse, neglect, accident, incorrect wiring, improper installation, or used in violation of instructions attached to that product. The manufacturer warranty may not extend to products which are installed in, or subject to, an adverse environment such as excessive dust, or a corrosive atmosphere, such as encountered in thermal areas or marine environments.
(11.3) The manufacturer warranty may not extend to products which have been altered outside the manufacturer’s factory, without prior approval in writing, or to equipment where the serial number has been removed, defaced or changed, or to accessories used in conjunction with the products, not supplied by the Seller.
(11.4) The Seller may assist the Buyer in returning goods to the manufacturer pursuant to the manufacturer warranty. The Buyer must give written notice to the Seller if the Buyer wishes to make a claim under a manufacturer warranty and would like the Seller’s assistance in making such claim. The Buyer must obtain a RMA (return merchandise authorisation) number from the manufacturer or Seller prior to returning goods. The Buyer must return goods to the Seller at the Buyer’s cost. If the Buyer returns goods to the Seller without a RMA number then the goods will not be accepted and will be sent back to the Buyer at the Buyer’s cost. If the Buyer’s warranty claim is accepted by the manufacturer then the Seller will arrange with the manufacturer for the supply of the replacement or repaired products to the Buyer.
(11.5) The Seller warrants that the services carried out by its staff, officers, agents, contractors and employees under this Agreement will be performed with all due care, skill and diligence, in a competent, accurate and professional manner to the highest industry standards. If any services have not been supplied in accordance with this warranty the liability of the Seller is limited to re-supplying those Services at no cost to the Buyer. Any claim under this warranty must be made in writing by the Buyer within 12 months of date of the performance of the Services.
(11.6) To the fullest extent legally permitted, the Seller and Buyer agree that the warranties in these terms are in lieu of any other warranties, obligations, or liabilities expressed or implied, including any warranty or merchantability or fitness for a particular purpose, with respect to any and all goods and services furnished by the Seller. No representative or person is authorised to assume for the Seller any other liability in connection with the supply of goods or services.
(11.7) All warranties and representations other than those expressly set out in this Agreement are excluded to the fullest extent permitted by law.
(11.8) The Seller and Buyer agree that if supplies under this Agreement are for purposes other than personal, domestic or household use or consumption then all consumer protection legislation (including for example the NZ Consumer Guarantees Act 1993 and the Australian Competition and Consumer Act 2010) are excluded to the fullest extent permissible by law.
(11.9) The liability of the Seller, its officers, employees and agents for all loss or damage related to the supply of goods and / or services under this Agreement pursuant to any of any non-excludable rights under any law is, to the extent legally permitted, limited to the liability referred to in clause 10.3 above.12. Personal Property Securities Act 1999 – New Zealand Supplies
If the Seller is supplying goods and services to a Buyer situated in New Zealand this clause 12 will apply.
(12.1) The Buyer acknowledges that these General Terms and Conditions create a security interest in all goods supplied by the seller and any proceeds of the sale of the goods as security for all of the Buyer’s obligations to the Seller pursuant to the Personal Property Securities Act 1999 (“the PPSA”), and that the Seller may register a financing statement to perfect its security interest in the goods delivered or to be delivered to the Buyer in accordance with the provisions of the PPSA.
(12.2) The Buyer shall provide all information, execute or arrange for execution of all documents and do all other things that the Seller may require, to ensure that the Seller has a perfected first ranking security interest in the goods under the PPSA.
(12.3) The Buyer waives its rights to receive a verification statement in respect of any financing statement or financing change statement registered by or on behalf of the Seller under the PPSA and agrees that as between the Seller and the Buyer, the Buyer will have no rights under (or by reference to) sections 114(1)(a), 116, 119, 120(2), 121, 125, 129, 131, 132, 133 and 134 of the PPSA, and where the Seller has rights in addition to those in part 9 of the PPSA, those rights shall continue to apply.
(12.4) The Buyer shall immediately upon request by the Seller, procure from any person considered by the Seller to be relevant to its security position such agreements and waivers as the Seller may at any time require to protect or enforce its security position.
(12.5) The Buyer shall immediately notify the Seller of any change in the Buyer’s name, address details and any other information provided to the Seller to enable the Seller to register a financing change statement if required.
(12.6) Until the Buyer has made full payment for goods it shall not without the prior written consent of the Seller create a security interest in the goods or the sale proceeds of the goods to any third party or permit any lien over the goods or the sale proceeds of the goods.13. Personal Property Securities Act 2009 – Australian Supplies
If the Seller is supplying goods and services to a Buyer situated in Australia this clause 13 will apply.
(13.1) The Buyer acknowledges that these General Terms and Conditions create a security interest in all goods supplied to the Personal Property Securities Act 2009 (CTH) (“PPSA”), and that the Seller may register a financing statement to perfect its security interest in the goods delivered or to be delivered to the Buyer in accordance with the provisions of the PPSA.
(13.2) The Buyer shall provide all information, execution or arrange for execution of all documents and do all other things that the Seller may require, to ensure that the Seller has a perfected first ranking security interest in the goods under the PPSA.
(13.3) The Buyer waives its rights to receive a verification statement in respect of any financing statement or financing change statement registered by or on behalf of the Seller under the PPSA to the extent permitted by the PPSA and agrees that as between the Seller and the Buyer, to the extent permitted by the PPSA the Buyer will have no rights under (or by reference to) sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 128, 129, 130, 132(3)(d), 132(4), 134(1), 135, 142 and 143 of the PPSA.
(13.4) The Buyer shall immediately upon request by the Seller, procure from any person considered by the Seller to be relevant to its security position such agreements and waivers as the Seler may at any time require to protect or enforce its security position.
(13.5) The Buyer shall immediately notify the Seller of any change in the Buyer’s name, address details and any other information provided to the Seller to enable the Seller to register a financing change statement if required.
(13.6) Until the Buyer has made full payment for goods it shall not without the prior written consent of the Seller create a security interest in the goods or the sale proceeds of the goods to any third party or permit any lien over the goods or the sale proceeds of the goods.14. General
(14.1) This Agreement together with the attached agreement or quote represents the entire agreement between the parties in relation to the subject matter. The Buyer acknowledges it has not relied on, or been induced to enter into, this Agreement by any warranties or representations except those expressly set out in this Agreement.
(14.2) Failure by either party to insist on the performance of any provision of this Agreement will not be deemed to be a waiver of any rights and remedies that the party may have and will not be deemed a waiver of any subsequent breach or default. No provision of this Agreement will be deemed to have been waived unless the waiver is in writing and signed by a director, manager, secretary or other officer of the party giving notice in that behalf.
(14.3) This Agreement may only be varied, modified, amended or added to in writing executed by the parties in the manner that this Agreement is executed.
(14.4) If any part of this Agreement is held or deemed invalid or unenforceable for any reason whatsoever then that part will be deemed to be deleted from this Agreement and the Agreement will otherwise remain in full force and effect.
(14.5) Except as expressly provided for in this Agreement neither party may assign or transfer its rights or obligations under this Agreement without the prior written consent of the other party. The Seller will be entitled to subcontract any of its obligations under this Agreement provided that the Seller will continue to be responsible for satisfying such obligations.
(14.6) These terms and conditions shall be governed by and interpreted according to the laws of the jurisdiction in which the Seller’s supplying office is located as specified on the attached agreement or quote and each party irrevocably submits itself to the exclusive jurisdiction of the Courts of that jurisdiction in respect of any proceedings arising out of or relating to this Agreement.