These general terms and conditions of sale (the “Terms”) apply to any Goods supplied by Comag to the Customer.
1. Interpretation and Definitions:
1.1 In these Terms unless the context requires otherwise:
1.2 References to one gender include the other genders and references to the plural include the singular and vice versa.
2.1 Orders may be made either in writing or online via the Website. All orders are subject to acceptance by Comag.
2.2 Unless otherwise agreed by Comag in writing, an Order cannot be cancelled by the Customer once it has been made.
2.3 If an Order is rejected by Comag, Comag will refund to the Customer any monies paid by the Customer to Comag on account of the Order.
2.4 If Comag agrees to the cancellation of an Order, the Customer agrees to pay all reasonable costs and charges incurred by Comag in relation to the Order to the date of such cancellation. Such costs and charges shall include any administration fees levied by Comag for a cancelled Order and all other losses, both actual and prospective, incurred as a result of such cancellation and shall be payable to Comag on demand (and maybe set off against any monies paid on account of the Order).
3. Electronic Commerce:
3.1 Comag may offer products for sale using the internet, e-mail or other computer-based electronic communications methods. All Sales using any such method will be governed by these Terms which will be referenced in Comag’s internet site or electronic communications.
3.2 The Customer may not share any password, access code or similar credential which may be issued to it by Comag, and Comag reserves the right to suspend or revoke any such credential.
3.3 The Customer is solely responsible for ensuring the security and integrity of its ordering process.
3.4 Any information provided by Comag via any internet site or electronic communication:
(a) is subject to correction or change without notice; and
(b) is provided for the sole use of the Customer for purposes of facilitating individual transactions involving the purchase and sale of Goods.
3.5 The Customer agrees that it shall not rely upon any information provided by Comag for any purpose other than making individual purchases and shall not seek to assert such information against Comag for any other purpose.
4. Customers Instructions:
4.1 At the time of the establishment of the Sale, the Customer shall furnish Comag with all necessary specifications and instructions to ensure satisfactory completion of the Sale.
5.1 The price is stated in the currency of payment to Comag and any necessary transaction to obtain this currency by the Customer shall be at the Customer’s risk and cost. Where no currency is stated, prices are quoted in New Zealand dollars.
5.2 All payments shall be made without deduction of any kind.
5.3 Default interest is at the rate of 15% per annum and is payable from the date such payment is due to the date of payment in full.
5.4 All contingency charges such as exchange rate fluctuations, sales tax or other taxes, increases in freight or insurance costs, surcharges due to war, the threat of war, warlike conditions, port congestion, or any other emergencies unforeseen or non-existent at the time of the establishment of the Sale, shall be the Customer’s account.
6. Terms of Payment:
6.1 For Goods sold on credit, Comag reserves the right to charge a deposit at the time at which an Order is placed. Comag will notify the Customer of the deposit required before processing the applicable Order.
6.2 The Customer shall pay for the Goods purchased in accordance with the payment terms agreed with Comag. Where no payment terms have been agreed, the purchase price for Goods ordered pursuant to an Order is due in full prior to delivery of the relevant Goods to the Delivery Location.
7. Credit Terms
7.1 Comag may, in its absolute discretion, offer credit to the Customer, and may impose credit terms that apply to the provision of such credit (“Credit Terms”). Any Credit Terms may, at Comag’s sole discretion, be determined in consultation with third party insurance or credit rating agencies.
7.2 Credit Terms imposed by Comag may be in respect of the amount of credit, the terms of payment or a combination of both.
7.3 If Credit Terms are imposed on the Customer, Comag shall notify the customer of the credit terms granted.
7.4 Comag may, in its absolute discretion from time to time and at any time modify, or vary the Credit Terms granted to the Customer (if any). Any modification or variation of Credit Terms shall be notified to the Customer in writing. In the event the Customer does not agree to any such variations, the Customer may at its option terminate its agreement with Comag and immediately cease to order Goods from Comag. The Customer will not be entitled to any refund of any sums already paid to the Customer and is not released from any payment obligations due and payable as at the date of termination, in the event of termination under this clause.
7.5 The Customer shall be solely responsible for maintaining the credit terms imposed by Comag. Comag reserves the right to withhold or refuse delivery (or collection) of Goods ordered or purchased by the Customer if at the time of delivery or collection the Customer’s credit terms are exceeded or otherwise breached. In such circumstances, the Customer shall not be entitled to make any claim whatsoever against Comag for non-delivery or non-performance of the contract.
7.6 Notwithstanding the provisions of this clause 7, nothing set out in these Terms shall constitute or be deemed to constitute a money-lending relationship between the Customer and Comag.
8. Delivery and Shipment
8.1 Comag will deliver the Goods to the delivery location specified by the Customer at the time of Order or such other location as may be agreed in writing from time to time. Unless otherwise agreed all costs of delivery shall be met by the Customer.
8.2 All dates and times quoted for receipt of delivery are estimates only. Comag shall not be liable in any way for the failure to supply the Goods within the stated time, or the non-receipt of the Goods once dispatched by Comag to a third party for delivery, and the Customer shall accept and pay for the Goods notwithstanding any such failure or non-receipt.
9. Quantity or Volume:
9.1 Delivery of the Goods covered by this Sale shall be subject to quantitative or volumetric variations, plus or minus, which are customarily accepted and recognised in transactions within the trading of the respective Goods.
10.1 For the avoidance of any doubt, the Customer is solely responsible for affecting insurance for Goods during delivery.
11.1 Ownership of Goods shall not pass to the Customer until the Customer has paid all that is owing to Comag. Until ownership has passed, the Customer holds the Goods on behalf of Comag under the following conditions:
(a) Comag is permitted to enter upon the Customer’s premises, and the premises of third parties, to inspect and/or repossess the Goods.
(b) If the Customer sells the Goods to a third party, then the Customer is accountable to Comag for all proceeds derived from such sale, and shall hold such proceeds (either as received or in a separate bank account opened expressly for the purpose) on trust for Comag.
(c) If the Customer manufactures, intermingles, or deals with the Goods in such manner that they become an integral part of any other object, then the Customer shall be deemed to do so as an agent of Comag, and ownership of the Goods will remain with Comag as principal.
12. Return of Goods:
12.1 The Customer shall be deemed to have accepted the Goods unless the Customer notifies Comag otherwise within 48 hours of delivery of the goods to the Customer.
12.2 In the event the Customer (with the written agreement of Comag) returns any Goods then, subject to any applicable law, the Customer must pay to Comag a restocking fee equal to 30% of the value of the relevant Goods (“Restocking Fee”). The parties acknowledge and agree that the Restocking Fee is not a penalty and is a genuine pre-estimate of the costs incurred by Comag in restocking any Goods returned by the Customer.
13.1 Unless otherwise agreed in writing, risk in the Goods shall pass to the Customer on and from the dispatch of Goods from Comag’s premises for delivery to the Delivery Location.
14. Personal Property Securities Act 1999 (PPSA)
14.1 The Customer acknowledges that these Terms create a Security Interest in the Goods as security for the Customer’s obligations to Comag under the Terms and this Security Interest is registrable on the PPSR. The Customer irrevocably authorises Comag to register a financing statement on the PPSR over any or all of their right, title and interest of, or in connection with, these Terms. The Customer shall:
(a) provide Comag with all such information and assistance as it may require to register a financing statement under the PPSA with respect to the Security Interest created by these Terms and to perfect such Security Interest in the Goods; and
(b) indemnify Comag against any costs Comag incurs in registering or maintaining its Security Interest in the Goods and exercising any of its rights under these Terms or Part 9 of the PPSA.
14.2 The Customer must sign and deliver any documents that Comag requires to ensure that Comag has a perfected first ranking Security Interest in the Goods under the PPSA.
14.3 The Customer waives any right to receive a copy of a verification statement (as defined in the PPSA) under the PPSA and agree to the extent permitted by law that:
(a) pursuant to s107(1) of the PPSA, Comag’s rights set out in these Terms apply despite s109 of the PPSA and are in addition to any rights that Comag may have under s109;
(b) where Part 9 of the PPSA applies, sections 114(1)(a), 133 and 134 of the PPSA will not apply; and
(c) where Part 9 of the PPSA applies, the Customer will have none of the rights referred to in sections 116, 120(2), 125, 129 and 131 of the PPSA and the Customer waives its rights to object under section 121.
15. Registered Rights:
15.1 The Customer shall indemnify Comag from all claims for any infringement of trademark, design, and pattern, mode of construction, patent, know-how, utility model or copyright rights arising from the performance of the Sale. The Sale shall not include the transfer of any such rights.
16. Events Beyond Comag’s Control:
16.1 Comag will not be liable if Comag cannot perform under these Terms if events beyond Comag’s control occur which make it impossible or commercially unreasonable for Comag to perform, including so-called “Acts of God” or “force majeure” events and raw material shortages.
17.1 Should the Customer default or neglect any of his responsibilities specified hereunder, or become insolvent, Comag shall have the option of suspending the performance of or cancelling the Sale and herewith reserves the right to claim against the Customer for any expenses, charges, agency costs and commissions, legal fees, losses incurred and/or market differences caused by such suspension or cancellation.
18. Warranties and Liability:
18.1 The Consumer Guarantees Act 1993 (“CGA”), the Fair Trading Act 1986 (“FTA”) and other statutes may impose warranties, conditions and obligations on Comag which cannot by law (or which can only to a limited extent by law) be excluded. Other than as expressly provided by these Terms, and except as provided for under the CGA or the FTA, to the extent permitted by law, all other warranties whether implied or otherwise, not set out in these Terms, or in other documents provided to the Customer by Comag and which specifically relate to the Goods in question, are excluded. For the avoidance of doubt, Comag will not be liable to provide any refund, returns, exchange or credit where the Customer or other third parties has caused or contributed directly or indirectly to any damage to the Goods whilst they were in the Customer’s possession or control.
18.2 Where the Customer acquires Goods for the purposes of a business:
(a) The parties acknowledge and agree that:
(i) The Customer is acquiring the Goods for the purposes of a business in terms of sections 2 and 43(2) of the CGA; and
(ii) The Goods are supplied and acquired in a trade for the purposes of the FTA and the parties agree to contract out of sections 9 (Misleading and deceptive conduct generally), 12A (Unsubstantiated representations) and 13 (False and misleading representations); and
(b) The Customer hereby agrees that all warranties, conditions and other terms implied by the CGA or sections 9, 12A and 13 of the FTA or any other statute or common law are excluded from these terms to the fullest extent permitted by law and that such exclusion is fair and reasonable.
18.3 To the maximum extent permitted by law, and subject to clauses 17.1 and 17.2, Comag’s total liability (whether in contract, statute, tort, including negligence, or otherwise howsoever arising) for any claim by the Customer, its agents, employees or subcontractors, or any other person (“Claim”), relating to or arising from the supply of Goods or any quotation or estimate given shall not exceed the price of the Goods to which the Claim relates.
18.4 If the Customer notifies Comag of a defect in accordance with clause 12, the Customer must provide Comag with such information as it may reasonably require, and if appropriate, reasonable access to inspect the Goods, within a reasonable time following delivery of the Goods. If the Customer fails to comply with this clause 18.3, the Goods will be deemed to be accepted by the Customer.
18.5 For the avoidance of any doubt, Comag makes absolutely no warranties or representations, express or implied, with respect to products not manufactured by it. Such products may (but will not necessarily) carry a manufacturer’s warranty, and the Customer irrevocably indemnifies and will hold Comag harmless for any claim arising out of any breach of warranty or claimed defect related to any products not manufactured by Comag.
19.1 Comag’s liability in connection with any Order is limited to either (at Comag’s sole discretion):
(a) Replacing the Goods with other goods that conform with the Order (or as otherwise agreed in writing between Comag and the Customer); or
(b) Refunding any monies that have been paid by the Customer to Comag on account of the Order,
subject to the Customer first restoring unencumbered ownership of the Goods to Comag.
19.2 Comag will not accept the return of Goods unless it agrees in writing in advance and the Goods are in the same condition as at the date of dispatch from Comag for delivery to the Delivery Location.
19.3 To the full extent permitted by law, Comag and each of Comag’s suppliers, directors, officers, employees and agents (“Related Parties”) will not be liable to the Customer (whether under contract, tort, statute or otherwise), or any third party, for any direct or indirect loss and/or damages of any kind whatsoever, including without limitation any:
(a) Loss or damage from any cause;
(b) Loss of profits, opportunity or saving; or
(c) Incidental, indirect special or consequential loss or damage.
19.4 The Customer unconditionally and irrevocably, releases, discharges and holds harmless Comag and its related parties from any claim or cause of action (whether under contract, tort (including negligence), statute or otherwise) arising in connection with the Goods and these Terms.
19.5 The Customer warrants and represents that it is relying on its own skill and judgment in relation to the quality of the Goods, their fitness for any purpose that may be required and not upon any conduct or representation by Comag, or any related parties.
19.6 If Comag or its related parties are liable to the Customer for any reason, and that liability has not otherwise been excluded by these Terms, then the maximum aggregate liability of Comag and its related parties to the Customer, howsoever arising, whether, in contract, tort (including negligence), breach of statutory duty, use of the Goods or otherwise, in relation to all claims for loss and/or damages for any cause will be limited to the actual direct damages suffered by the Customer as a result of any fraudulent act, willful default or gross negligence on the part of Comag and will under no circumstances exceed the contract price of the applicable Goods actually paid by the Customer to Comag.
20. Technical Advice and Other Services:
20.1 The Customer is responsible for the design, processing, testing and labelling of any product that the Customer makes using products the Customer buys from Comag and the Customer will not rely on anything on Comag’s website or any statement by Comag about the suitability of products or services Comag provides. The Customer warrants and represents has tested and investigated products sold by Comag enough to form an independent judgement concerning their suitability for their use, conversion or processing intended by the Customer and will not make any claim against Comag based on Comag’s technical advice, statements, data, services or recommendation. The Customer hereby irrevocably indemnifies Comag against any costs, loss or expense (including legal costs) Comag incurs as a result of a breach by the Customer of this clause 20.
21.1 Claims of any kind shall be lodged by the Customer with Comag in writing and in full within 48 hours where Goods are delivered from Comag’s warehouse. Such claims should be accompanied by sworn statements or certificates, from surveyors or other competent authorities. No claim shall be accepted after processing or other change in the state of goods. In any event, the liability of Comag hereunder shall not exceed the contract price of the goods.
22.1 Comag reserves the right to review and amend these Terms at any time by notice in writing to the Customer. Such amended Terms shall apply to all orders placed by the Customer following such notification. In the event the Customer does not agree to any such amendments, the Customer may at its option terminate its agreement with Comag and immediately cease to order Goods from Comag. The Customer will not be entitled to any refund of any sums already paid to the Customer and is not released from any payment obligations due and payable as at the date of termination, in the event of termination under this clause.
23. Law Governing:
23.1 The performance of the Sale shall be governed by the laws of New Zealand, and the parties submit to the non-exclusive jurisdiction of the Courts of New Zealand.