TERMS & CONDITIONS OF SALE
These Terms and Conditions of Sale form part of any quotation or contract in which they are referred or to which they are attached, and, unless otherwise agreed, any Goods to be supplied or supplied by A Little Tuning Co will be or are supplied subject to these Terms and Conditions of Sale.
A. A Little Tuning Co is in the business of distributing performance parts for the Volkswagen Audi group vehicles
B. The Buyer has requested that A Little Tuning Co supply products to it.
C. A Little Tuning Co’s agreement to supply and the Buyer’s agreement to purchase the products is set out in this Contract.
IT IS AGREED AS FOLLOWS
- Purchase Orders
- Consumer Guarantees Act 1993
- Force Majeure
- No Assignment
- Law & Jurisdiction
1.1. In these Conditions of Sale:
a) Buyer means the buyer of the Goods. Confidential Information means:
i. the existence of the Contract, its subject matter and the terms and conditions contained in it; and
ii. any information which is not public knowledge and which is obtained from the other Party pursuant to or in the course of the negotiation or implementation of the Contract.
b) Contract means these Terms and Conditions of Sale between A Little Tuning Co and the Buyer for the purchase of the Goods together with the relevant Quote, Purchase Order and Order Acknowledgement.
c) Delivery occurs when the Goods are made available for transport. In the event the Goods are not being supplied, then delivery occurs at the earlier of when Goods are delivered to the Buyer’s premises and when they are signed for. Delivered has a corresponding meaning.
d) A Little Tuning Co means the supplying company A Little Tuning Co Limited having its registered address at PO Box 33450, Barrington, Christchurch, New Zealand.
e) Goods means the products supplied by A Little Tuning Co to the Buyer pursuant to this Contract.
f) Intellectual Property means patents, rights to inventions, copyright and related rights, trademarks and service marks, business names and domain names, goodwill and the right to damages for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world, including the right to sue for and recover damages for past infringements.
g) Order Acknowledgement means A Little Tuning Co’s written acceptance of the Purchase Order.
h) Party means either A Little Tuning Co or the Buyer as the context requires, and Parties shall refer to both of them.
i) Price means the price of the Goods determined in accordance with this Contract. This may include but is not limited to the Quoted price, price list price or Contract price.
j) Purchase Order means the Buyer generated document authorising the purchase of the Goods specified there. The Purchase Order sets out the descriptions, quantities, and prices of the Goods, and any other information as required by A Little Tuning Co.
k) Quote means a quote issued by A Little Tuning Co to the Buyer in relation to specific Goods.
l) Specifications means any Specifications for Goods provided or made available by A Little Tuning Co to the Buyer.
m) Working Day means a day other than a Saturday or Sunday, on which are banks in Christchurch are generally open for business.
1.2. Headings are used as a matter of convenience and shall not affect the interpretation of these conditions.
2.1. Unless expressly stated otherwise, and to the extent of any conflict in terms, this Contract records all the terms of sale between A Little Tuning Co and the Buyer. For the avoidance of doubt, this Contract shall not override existing agreements insofar as the existing agreement incorporates terms that are not contemplated in this Contract.
2.2. Any Quote, Purchase Order and Order Acknowledgement (where the Contract arises from an order by the Buyer) together with these Terms and Conditions of Sale shall form the Contract between A Little Tuning Co and the Buyer. A Little Tuning Co’s receipt of a Purchase Order from the Buyer will be deemed to be acceptance by the Buyer of these Conditions of Sale.
2.3. No agent or representative of A Little Tuning Co is authorised to make any representations, warranties, conditions or agreement not expressly confirmed by A Little Tuning Co in writing and A Little Tuning Co is not in any way bound by any such unauthorised statements nor can any such statements be taken to form a contract or part of a contract with A Little Tuning Co.
2.4. Except as mutually agreed in writing between the Parties, neither this Contract nor any Purchase Order (whether or not confirmed) may be varied or cancelled except in accordance with this Contract.
3. PURCHASE ORDERS
3.1. Purchase orders bind the Buyer to the payment for, the quantities of the Goods specified in the Purchase Order at the Quoted price (where the Purchase Order is made in reliance on a Quote and the Purchase Order is made before the expiry of the Quote) or the price determined in accordance with the Contract (e.g. per price list or agreed Contract price).
3.2. Subject to the terms and conditions of this Contract, all Purchase Orders bind A Little Tuning Co once A Little Tuning Co has confirmed the Purchase Order in writing.
3.3. Purchase Orders must specify:
a) the Goods and quantity required;
b) the Specifications (if necessary);
c) any relevant Quote number, quoted price;
d) the relevant Contract number (if applicable);
e) the Delivery address if applicable; and
f) any other information as required by A Little Tuning Co.
3.4. If the Buyer fails to record any of the information as required by clause 3.3 above on the purchaser order or the Buyer records incorrect information on the Purchase Order (such as an incorrect part number) and, as a result, A Little Tuning Co incurs costs then A Little Tuning Co may, at its option, require the Buyer to reimburse it for such costs. The Buyer shall, at all times, remain liable for the cost of any incorrect Purchase Order.
3.5. Purchase orders may be cancelled, with A Little Tuning Co consent, on payment of the costs incurred by A Little Tuning Co in processing the order and manufacturing the relevant Goods to the date written notice of A Little Tuning Co consent to the cancellation of the order is sent by A Little Tuning Co to the Buyer.
4.1. Where the Buyer purchases Goods or any Goods are made to order or otherwise customised or configured in any way for the Buyer, the Buyer may submit a Specification Change Request for any requested changes to the Goods.
4.2. The Specification Change Request is to specify:
a) the change to the Specifications;
b) the name and signature of the person with the authority to approve and release the Specification Change Request;
c) the date from which the Specification Change Request is effective; and
d) whether the Specification Change Request is effective in respect of any or all of the following:
i. new production; or
ii. existing stock; or
4.3. A Little Tuning Co may accept or decline the Specification Change Request in its sole discretion. A Little Tuning Co will advise the Buyer of its acceptance or otherwise in writing within 10 Working Days.
4.4. If A Little Tuning Co accepts the Specification Change Request and confirms this to the Buyer in writing, A Little Tuning Co shall carry out and comply with any Specification Change Request made under this Contract. The cost of complying with the Specification Change Request shall be added to or deducted from the price of Goods and will be set in the Specification Change Request confirmation from A Little Tuning Co. Any dispute over the appropriate adjustment shall be determined in accordance with the procedure set out in clause 17.
4.5. If manufacturing or procurement has begun before a Specification Change Request is confirmed by A Little Tuning Co to the Buyer, any procured Goods, completed items, work in progress or materials that cannot be altered or will not be required to comply with the Specification Change Request will be invoiced to the Buyer. This will be at the previously agreed price (in terms of completed or procured items) or at the cost of manufacture and processing the order to the date A Little Tuning Co accepts in writing the Specification Change Request.
5.1. Subject to clause 5.2, the price for Goods will be as set out in the relevant Quote or, in the absence of a Quote, as invoiced by A Little Tuning Co using the agreed pricing applicable at the date of delivery (e.g. per price list or agreed Contract price).
5.2. Quotes expire 30 days after submission to the Buyer by A Little Tuning Co unless otherwise noted on the Quote.
5.3. The Quoted price excludes freight unless otherwise specified. Additional freight surcharges may also apply to after hours or weekend deliveries.
5.4. Price change notifications will be at A Little Tuning Co’s discretion.
5.5. Any Goods and Services or Valued Added Tax and other taxes and duties assessed or levied in connection with the supply of the Goods to the Buyer are not included in the price and shall be payable by the Buyer in addition to the price or, where the payment of such taxes or duties is the responsibility of A Little Tuning Co at law, the price shall be increased by the amount of such taxes or duties.
6.1. Payment for Goods invoiced by A Little Tuning Co shall be received prior to Goods being Delivered.
6.2. A Little Tuning Co may at any time prior to accepting any order, require security for payment for Goods, which in its sole discretion A Little Tuning Co deems sufficient, and may suspend performance of its obligations under the Contract until sufficient security is provided.
6.3. For the avoidance of doubt, the Buyer shall not be entitled to withhold payment for any Goods where there is no dispute in relation to those Goods. The Buyer must pay for the Goods that are not in dispute by the date specified in clause 6.1 above.
6.4. All payments are strictly net.
6.5. Any late payment or non-payment will constitute a default by the Buyer in the performance of the Contract. Interest at 4% above monthly BBR (Bank Bill Rate) per annum at the time of commencement of the default may be payable from the time of commencement of the default until the date of payment but without prejudice to A Little Tuning Co’s other rights or remedies.
6.6. In addition to interest, the Buyer will be liable for all debt collection costs, including, but not limited to, solicitor’s costs and disbursements incurred by A Little Tuning Co in recovering any outstanding amounts.
6.7. Acceptance by A Little Tuning Co of any payments after the due date, shall not waive any of A Little Tuning Co’s rights regarding late payment contained in this clause.
7.1. Where an Order Acknowledgement makes provision for a Delivery, then the Delivery shall be made at the place specified in the relevant Order Acknowledgement. If the Buyer fails or refuses or indicates to A Little Tuning Co that it will fail or refuse to take or accept Delivery, then the Goods shall be deemed to have been delivered when A Little Tuning Co was willing to deliver them. The Buyer will meet any costs incurred if Goods have been turned away and returned to a depot.
7.2. The place for Delivery specified in the relevant Order Acknowledgement may be changed at the request of the Buyer with A Little Tuning Co’s prior consent.
7.3. Where an Order Acknowledgement makes provision for a Delivery, then should A Little Tuning Co fail to Deliver or make a defective Delivery of one or more instalments, this shall not entitle the Buyer to repudiate the Contract.
7.4. Where an Order Acknowledgement makes provision for a Delivery, then A Little Tuning Co will not accept Goods that have been damaged in transit for return where the Buyer has indicated on its acceptance of Delivery that they are in a satisfactory condition. Goods that are obviously damaged must be advised as such immediately on receipt.
7.5. Where an Order Acknowledgement makes provision for a Delivery, then the A Little Tuning Co will not accept liability for Goods Delivered to sites where Buyers are not present to receipt the Goods.
7.6. Where applicable, the Buyer is responsible for all costs and compliance with any export regulations and any other applicable laws and regulations in place in the country of import, for which the Goods are destined.
8.1. While A Little Tuning Co will use all reasonable endeavours to ensure that Goods are delivered by their agreed delivery date, no penalty will be imposed on A Little Tuning Co nor will a reduction in the price be available on the grounds of failure to meet a delivery date.
8.2. If the delivery of the Goods is delayed by reason of or as a result of any act, omission, default or request by or on behalf of the Buyer, A Little Tuning Co may, without prejudice to its other rights and remedies, require payment by the Buyer of such portion of the price as represents the extent to which A Little Tuning Co has performed the Contract or carried out work required by the Contract up to the date such payment is required together with the any expenses or additional costs incurred by A Little Tuning Co as a result of such delay. In the event of such delay continuing beyond a reasonable time, A Little Tuning Co may, without prejudice to its other remedies, terminate the Contract.
9.1. Risk of any loss, damage or deterioration of or to the Goods shall be borne by the Buyer from the date of departure of the Goods from A Little Tuning Co premises unless alternative delivery terms has been agreed to by A Little Tuning Co.
9.2. The Buyer must notify A Little Tuning Co in writing within three (3) working days of the date of receipt of the Goods should there be any discrepancy in the Goods which should have been delivered and the Goods actually delivered including details of any deficiencies in quantity, quality and so on (“the Notice”). Upon A Little Tuning Co’s receipt of the Notice, A Little Tuning Co shall respond in accordance with the process set out in clause 10.2.
9.3. If any of the Goods are damaged or destroyed prior to property in the Goods passing to the Buyer, A Little Tuning Co shall be entitled, without prejudice to any of its other rights or remedies under the Contract, to receive all insurance proceeds which are payable in respect of the Goods (whether or not the price of such Goods has become payable under the Contract).
10.1. A Little Tuning Co will make good any defects (or at its option, replace the product) in materials or workmanship arising within 12 months from the manufacture of the Goods. This warranty covers both parts and labour. Parts may be replaced under this warranty with new or remanufactured parts.
10.2. No claim shall be accepted unless written notice of the claim is received by A Little Tuning Co in accordance with A Little Tuning Co’s Return Merchandise Authorisation (RMA) procedure, as soon as reasonably possible after the defect is discovered.
10.3. No claim shall be accepted if:
a) the defective Goods have been misused, abused, or used in ways the product was not designed; or
b) any attempt to repair the defective Goods is made by any person not authorised by A Little Tuning Co to effect such repairs; or
c) the defective Goods have been damaged in transport, or modified or incorrectly stored, maintained, or not installed by a qualified professional, or operated.
d) Any conditions, warranties, descriptions, representations, conditions as to fitness or suitability for any purpose, tolerance to any conditions, merchantability or otherwise (whether of a like nature or not) and whether express or implied by law, trade custom or otherwise are expressly excluded. A Little Tuning Co’s liability for any loss shall be as set out in clause 10.5, even if A Little Tuning Co has been advised of the possibility of such loss.
10.4. If the Goods are not manufactured by A Little Tuning Co, then the foregoing warranty shall not apply to such Goods. In the case where the manufacturer or supplier of any such Goods provides any warranty, then A Little Tuning Co (to the extent that it is able to do so) shall make such warranty available to the Buyer.
10.5. Where any warranty obligations under clause 10.1 fail to be met, A Little Tuning Co’s liability for such failure shall be limited to replacement of the Goods in question or damages (at A Little Tuning Co’s discretion) which shall be subject to the limitation contained in clause 12 below.
10.6. The Buyer warrants that the design, materials, documents and methods of working for each of the Goods that is made to order for it by A Little Tuning Co shall not infringe any intellectual property rights.
11. CONSUMER GUARANTEES ACT 1993
11.1. Where A Little Tuning Co is supplying goods to the Buyer for business purposes within the meaning of the Consumers Guarantees Act 1993 and pursuant to section 43 the provisions of that Act shall have no effect.
11.2. Where A Little Tuning Co is supplying goods to the Buyer for other than business purposes the provisions of the Consumer Guarantees Act 1993 shall apply.
11.3. Where A Little Tuning Co supplies Goods to a person acquiring them for business purposes it shall be a term of the Contract with the Buyer that the Consumer Guarantees Act 1993 does not apply in respect of the Goods.
12.1. Notwithstanding anything contained in this clause or contained elsewhere in the Contract, the liability of A Little Tuning Co, whether in contract, tort or otherwise, in respect of all claims for loss, damage or injury arising out of the performance or non-performance of A Little Tuning Co’s obligations arising under or in connection with the Contract or provision of non-provision of the Goods, or otherwise shall be limited in aggregate to an amount being 1/10th the price paid for the Goods which directly contributed to the loss.
12.2. A Little Tuning Co's liability to indemnify the Buyer under this clause will be reduced proportionately to the extent that any act or omission or default on the part of the Buyer contributed to the claim being brought against A Little Tuning Co.
13. FORCE MAJEURE
13.1. Neither Party will be liable for any act, omission, or failure to fulfil its obligations under this Contract if such act, omission or failure arises from any cause reasonably beyond its control including strikes, lockouts, riots, acts of war, epidemics, governmental action superimposed after the date of this Contract, fire, communication line failures, power failures, earthquakes or other disasters (“Force Majeure”).
13.2. The Party unable to fulfil its obligations due to a Force Majeure shall:
a) immediately notify the other in writing and provide full information concerning the Force Majeure event including an estimate of the time likely to be required to overcome the event;
b) use its best endeavours to overcome the event and minimise the loss to the other Party; and
c) continue to perform its obligations as far as practicable.
14.1. The Parties will meet and discuss in good faith any disputes between them arising out of the Contract.
14.2. If the discussions referred to in clause 14.1 fail to resolve the relevant dispute within 20 working days of the dispute arising, any Party may (by written notice to the other parties) require that the dispute be submitted for mediation by a single mediator nominated by the President for the time being of the New Zealand Law Society. In the event of any such submission to mediation:
a) the mediator will be deemed to be not acting as an expert or an arbitrator;
b) the mediator will determine the procedure and timetable for the mediation.
14.3. The cost of the mediation will be shared equally between the parties to the dispute.
14.4. In the event that resolution by mediation is not achieved to the satisfaction of both Parties within 30 days of referral to mediation, either party may then take legal action to resolve the dispute.
14.5. If the dispute has not been resolved within 20 working days of the mediator being appointed or such longer period agreed in writing by the Parties then either Party may then take legal action to resolve the dispute.
14.6. Pending final settlement of any dispute, the Parties shall continue to perform their obligations under the Contract so far as possible as if no dispute had arisen.
14.7. Nothing in this clause 17 shall preclude a Party from seeking urgent injunctive or interlocutory relief before a New Zealand Court.
15. NO ASSIGNMENT
15.1. The Buyer may not assign all or any of his rights or obligations under the Contract without the prior written consent of A Little Tuning Co.
15.2. A Little Tuning Co is entitled at any time to assign to any other person or entity, all or part of the debt owing to A Little Tuning Co by the Buyer. Any assignee shall be entitled to claim full rights of set-off or counter claim against the Buyer, its charge-holders or successors, in respect of the debt, or any part of the debt assigned.
16.1. The Buyer agrees and confirms that Goods supplied by A Little Tuning Co shall not be used or supplied by it to any other third party for the purposes of development, production or deployment of nuclear, chemical or biological weapons or their means of delivery in any country.
16.2. The Buyer further agrees and confirms that Goods supplied by A Little Tuning Co shall not be used or supplied by it to any other third party for military end-use in a country subject to a United Nations Security Council arms embargo.
17. LAW AND JURISDICTION
17.1. The Contract shall in all respects be deemed to be a contract made in New Zealand and the construction, validity and performance of the Contract shall be governed by New Zealand Law and the New Zealand courts will have exclusive jurisdiction in relation to the Contract.