TERMS OF SALE
1. Interpretation. References to We, Us, and similar expressions, refer to BISON Group Limited (NZCN 5115901). References to You, and similar expressions, refer to you, our customer or proposed customer.
2. Our Terms Apply. These conditions prevail for all orders accepted by BISON in a written order acknowledgement even if they are inconsistent with anything in any other document including a quote, proposal or your order.
3. Acceptance of Orders. We are not obliged to accept any orders from you, but if you do place an order with us then it becomes binding from the moment that we accept it. Any quotation or proposal by BISON is merely an invitation to you to place an order with us. If you offer to purchase goods based on a quotation or proposal from us, then your offer is also subject to these conditions. We shall not be deemed to have accepted any order you submit unless and until an authorised representative of BISON has accepted such order in a written order acknowledgement, which may be delivered by email.
PRICE, PAYMENT AND DELIVERY
4. Price. All prices are in the currency quoted by BISON in its order acknowledgement (if no currency is quoted, then USD) and for delivery under the Incoterm quoted by BISON in its order acknowledgement (if no Incoterm is quoted, then ex-works (per Incoterms (2010)) and are exclusive of any sales taxes (e.g. GST, VAT) and duties, which shall be charged in addition at the prevailing rate if applicable. Unless we agree with you in writing, all additional costs, including, but not limited to, charges for freight, packing, carriage, and insurance will be borne by you. If we assume any additional cost, we reserve the right to reasonably adjust its price should the basis for such additional cost change. You represent and warrant that you can make the payments to us in the currency as set out in this Agreement and that you are not restricted or impeded in any way from making any payments to us.
5. Time for Payment. Full payment in advance, or a deposit, may be required as a condition of our accepting your order. Unless we agree in writing to give you credit (which is solely at our discretion and, if given, may be subject to conditions including, but not limited to: (i) a parent company guarantee, or a letter of credit from a bank, as acceptable to BISON; (ii) proof that the goods are covered by adequate insurance, as acceptable to BISON; and (iii) the registration of a security interest in the goods, at your expense. Time is of the essence in relation to all of your payment obligations.
6. Overdue payments. If any amount you owe to us is not paid by the due date then (without limiting any of our rights contained herein or otherwise):
(a) all of the monies that you owe us on any account become immediately due and payable; and without limiting our other rights we may suspend or terminate the supply of any goods or services, and defer or cancel any outstanding orders; and
(b) a late payment fee of the lesser of: (i) 2% per annum above the 1-Month LIBOR expressed as an annual rate; and (ii) the maximum rate permitted by law, may be imposed from the due date until the full amount is paid (a part of a month being treated as a full month for the purpose of calculating interest); and
(c) you will be liable to pay and indemnify us for all expenses incurred by us in recovering any amounts which you fail to pay by the due date (including any commission payable to any commercial or mercantile agents, agency collection fees, registration fees, penalty fees and legal costs).
7. Insolvency. If: (I) you make a voluntary arrangement with your creditors or (being an individual or firm) become bankrupt or (being a company) become subject to an administration order or go into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or (II) an encumbrancer takes possession, or a receiver is appointed, of any of your property or assets; or (III) you cease, or threaten to cease, to carry on business; or (IV) we reasonably apprehend that any of the events mentioned above is about to occur in relation to you, without limiting any of our rights contained herein or otherwise, we may cancel this Agreement, or suspend any further deliveries under this Agreement without any liability to you, and if the Goods have been delivered, but not paid for, then the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
8. Delivery. Unless we agree otherwise in writing: (a) delivery times we provide are estimates only; (b) we are not liable for any delays in having the goods ready for delivery, in the delivery of the goods, or for force majeure events; and (c) risk with respect to the goods (including any loss, damage or deterioration) shall pass to you immediately: (i) if ex-works, when we inform you that the goods are available for delivery; or (ii) if another Incoterm applies to your order, in accordance with that Incoterm; or (iii) in all other cases, at the time of delivery. You agree that time for delivery is not of the essence. If we assume any additional activities relating to delivery (for example, but not limited to, assisting to load the goods, completing any documentation, export reporting or clearance processes), we undertake such activities for and on behalf of you at your sole risk and cost. We may correct any typographical, clerical or other error or omission in any documentation (including in any quote, price list, offer, offer acceptance, invoice or other document) without any liability on our part.
WARRANTIES AND LIMITATIONS
9. Our Limited Warranty. The BISON Limited Warranty applies to any goods that we manufacture or sell to you pursuant to this Agreement and is incorporated by reference herein. The BISON End User License Agreement applies to any BISON software and is incorporated by reference herein. In relation to the specific subject matter contemplated by each of the BISON Limited Warranty and the BISON End User License Agreement, the terms of the BISON Limited Warranty and the BISON End User License Agreement shall prevail over these conditions to the extent of any conflict. Please note – you should read the BISON Limited Warranty and BISON End User License Agreement as they are important documents relevant to this Agreement which include information about your rights and remedies and any limitations thereto. The BISON Limited Warranty and BISON End User License Agreement may be updated from time to time by BISON, please refer to BISON’s website for the latest version.
10. Third party warranties. We do not provide any warranties or guarantees with respect to any third party supplied or manufactured goods or software that we supply to you, however we will use our commercially reasonable endeavours to assist you to obtain the benefit of any guarantee or warranty offered by the original third party supplier or manufacturer of any goods or software that we supply to you (as applicable).
11. Exclusion of Implied Conditions. You acknowledge and agree that: (i) you are "in trade" with us, the goods are being acquired by you from us "in trade", this is a business-to-business transaction and that you are not acquiring our goods as a consumer for personal use; (ii) the provisions of any laws pertaining to consumer protection and fair trading as they relate to business-to-consumer transactions are hereby expressly contracted out of and shall not apply to the parties or the transactions contemplated by this Agreement to the extent permitted by such laws; and (iii) the contracting out of such laws is fair and reasonable. To the extent that any applicable law implies any terms, conditions and warranties which might apply to our supplying goods or services to you, we hereby exclude all of those implied terms, conditions and warranties to the fullest extent permitted by law.
12. Our Liability. Subject always to Section 13 (Liability Exclusions) and the BISON Limited Warranty and the BISON End User License Agreement, notwithstanding anything to the contrary, our liability, whether in tort, contract or equity, or any other basis, is limited at the lesser of: (a) the amount you have paid to us for any goods or services we have supplied to you pursuant to this Agreement which are directly associated with the claim; and (b) NZD$10,000.
13. Liability Exclusions. We are not liable to you or any third party, in contract, tort (including negligence) or on any other basis, for: (i) any representations (unless fraudulent); (ii) any implied warranty or condition, to the extent permitted by applicable law; (iii) any indirect, incidental, exemplary, punitive, special or consequential losses, costs, expenses, or damages or other claims for compensation; (iv) any loss of use, loss of profits, loss of anticipated earnings or savings, any damage to or loss of any of your or a third party’s possessions or information; (v) the cost of replacement goods, or parts thereof; or (vi) any third party claims. This limitation and exclusion of liability applies whether or not we have, or ought to have, any special or other knowledge that any such losses, damages or claims would be suffered or incurred by you or any third party.
14. Compliance with Laws. You are solely responsible for ensuring that the use and any other dealing with any goods, software or services we supply to you complies with the laws and regulations of the territories in which you operate. We assume no such responsibility and give no warranties or representations in connection with such compliance.
Without limiting the foregoing, if we supply you a weighing instrument then, unless or until that instrument is marked with an official verification mark under the relevant weights and measures regulations pertaining to your use of the instrument as part of your operations, do not use the instrument for the purposes of complying with the weights and measures regulations.
15. Indemnity. You hereby indemnify us against any liability, loss or damage we may incur or sustain as a result of the use of the goods and any failure, act or omission by you.
16. Ownership Passes to You On Payment. You acknowledge and agree that, at all times until you have paid the full price for all of the goods covered by an order, plus any associated charges and, if you owe us any other amount, until you have paid those amounts in full:
(a) you must keep the goods separate, insure them, store and protect them properly and identify them as being owned by BISON; and
(b) we may require that you return the goods to us and if you don’t return the goods then you hereby grant us a license to enter into any premises or vehicle if we have reasonable grounds to expect that we may find any part of the goods there and we may re-take possession of the goods; and
(c) you do not become the owner of particular goods, we retain title and remain the owner of the goods and this applies even if: (i) we hold some negotiable instrument or security for the amount unpaid, or (ii) you go into liquidation or become bankrupt; and
(d) in no circumstances will the goods be deemed fixtures and you indemnify us for any damage which has been caused to the goods and for our costs to recover possession of the goods; and
(e) you are not permitted to resell any of the goods, however if you do resell any of the goods (even if mixed with other goods), you are acting as our selling agent and shall act as bailee although only to the absolute minimum extent necessary to protect our ownership and, if the goods are sold, you will hold the proceeds of sale on trust for us.
17. Returned Goods. No goods may be returned to us without our prior written approval and then only upon such terms as we may require which may include inspection, re-packaging and transport costs.
18. Software Licences. If we supply any firmware or software which comes with goods, it is supplied under the terms of the BISON End User License Agreement, which gives you a non-exclusive licence to use it on or with the goods only. We do not sell you any firmware or software and we retain all ownership rights, title and interest in any firmware or software.
19. Variations in Specifications. We reserve the right to vary the specifications or performance criteria of any product from time to time and to obtain products from different sources, at our absolute discretion. We may do that without telling you provided we have reasonable grounds for believing that the alternative product offered is substantially similar to that previously offered or represents an improvement.
20. Non Representation. The description, illustration and performance of any product contained in our catalogue, marketing material, price list or advertising does not form part of this Agreement unless expressly set out in this Agreement. Any representation made about fitness for purpose is made for general guidance only and you should fully satisfy yourself that the product will meet your requirements and will be suitable for your intended purpose. You should not rely on any representations or warranty by our employees or agent unless and to the extent that such representations are confirmed by an authorised representative of BISON in writing. If you follow or act upon any advice or recommendation provided by BISON or its employees or agents to you regarding the delivery, storage, application or use of the goods which is not confirmed in writing in BISON’s published documentation for the goods you do so entirely at your own risk and we are not responsible or liable for such advice or recommendations.
21. Other General Conditions. These conditions can only be varied by one of our authorised officers signing a document that states the variation, and the transaction to which the variation applies. If any provision of this Agreement shall be invalid, void, illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired. You are not entitled to set off against or deduct from the price any sums owed or claimed to be owed to you by us. The failure by us to enforce any provision of term and condition of this Agreement shall not be treated as a waiver of that provision, nor shall it affect our right to subsequently enforce that provision.
22. Force Majeure. We shall not be liable to you or be deemed to be in breach of this Agreement due to any delay in performing, or any failure to perform, any of our obligations if the delay or failure was due to any cause beyond our reasonable control. Without limiting the foregoing, the following shall be regarded as causes beyond our reasonable control:
(a) acts of god, explosion, flood, tempest, fire or accident;
(b) war or threat of war, sabotage, terrorist activity, insurrection, civil disturbance or requisition;
(c) acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
(d) import or export regulations or embargoes;
(e) strikes, lock-outs or other industrial actions or trade disputes (whether involving our employees or employees of a third party);
(f) difficulties in obtaining raw materials, labour, fuel, parts or machinery; or
(g) power failure or breakdown in machinery.
23. Applicable Law. Our transactions are governed by the laws of New Zealand and any disputes shall be subject to the exclusive jurisdiction of the ordinary courts of Dunedin, New Zealand. Notwithstanding the foregoing, we retain the right to bring legal action against you before any other competent court. If you are domiciled in a jurisdiction which has statutory requirements for the recycling or disposal of goods (such as, or similar to, the Waste Electrical and Electronic Equipment Directive (WEEE Directive)), you agree to ensure that all applicable statutory requirements (including those of the manufacturer, if any) are satisfied when the goods are disposed of at your sole cost.
24. Publicity. You agree that we may identify you as a customer of BISON in BISON’s marketing materials, case studies and announcements, or on BISON’s website.