General Terms and Conditions of Contract
Of ICONA Limited “Seller”
1.1 “Seller” shall mean ICONA Limited, or any agents, employees, successors or assigns thereof.
1.2 “Owner” shall mean the entity or person named on any form provided to the Seller (or any person acting on behalf of and with the authority of such entity or person) who buys or agrees to buy goods or services (which includes materials to complete the works). If the Owner includes two or more persons, those persons’ liability is joint and several.
1.3 “Works” shall mean all goods and services provided by the Seller.
1.4 “Price” means the total cost of all works as invoiced to the Owner by the Seller.
2.1 This contract shall be subject to the laws and statutes of New Zealand.
2.2 The Seller may sub-contract any part of this contract. No subcontractor has any authority to agree to any variation of this contract on behalf of the Seller.
2.3 Any instructions received by the Seller from the Owner for the supply of works shall constitute acceptance of this contract.
2.4 Any quotation given by the Seller is a mere invitation to treat and does not constitute a contractual offer. The Seller may withdraw a quotation at any time without notice. Prices included in the quotation are based on the specifications, drawings and /or requests by the Owner. Should the specifications vary in any way, or the Owner request any changes, then the Seller reserves the right to vary the quotation price. The Owner is responsible for any freight costs.
3.1 The Seller may require a deposit to be made before commencing the works or equipment procurement.
3.2 Paying a deposit confirms that the Owner is entering into a contract with the Seller to purchase or perform works. If the Owner does not proceed with the acquisition, this will amount to a material breach of the contract and the Owner will be liable for any charges, commissions, fees, and disbursements incurred by the Seller. The Owner will forfeit the deposit and the Seller may keep the deposit.
3.3 Payment shall be on the date shown on the invoice, unless otherwise agreed to in writing.
3.4 Payment may be made by instalment at the Seller’s sole discretion.
3.5 Payments by credit card incur a 2.5% administration fee (the rate charged may change without notice).
3.6 The Seller may in its sole and absolute discretion withdraw any credit facility granted without notice.
4. Passing of Property
Until the Seller receives full payment in cleared funds for all Goods and Services supplied by it to the Owner, as well as all other amounts owing to the Seller by the Owner:
4.1 Title and property in all works remain vested in the Seller and does not pass to the Owner,
4.2 The Owner must hold the works as fiduciary bailee and agent for the Seller.
4.3 The Owner must keep the works separate from its other assets or other goods and maintain the Seller labelling and packaging,
4.4 In addition to its rights under the PPSA, the Seller may without notice, enter any premises where it suspects the works are and remove them, notwithstanding that they may have been attached to other goods not the property of the Seller, and for this purpose the Owner irrevocably licenses the Seller to enter such premises and also indemnifies the Seller from the costs, claims, demands or actions by any party arising from such action.
5. Risk and Insurance
5.2 The works are sold to the Owner on the basis that the Owner has obtained all necessary licenses or permits under all relevant laws and regulations in relation to the Goods.
5.3 The Owner assumes all risk and liability for loss, damage, or injury to persons or to property of the Owner, or third parties arising out of the use, installation, or possession of any of the works sold by the Seller, unless recoverable from the Seller on the failure of any statutory guarantee under the Consumer Guarantees Act 1993.
The Owner must:
6.2 Notify the Seller of any alleged damage or non-conformance with the specifications of the Agreement within five business days of delivery, otherwise the Owner will be deemed to have accepted the Goods.
6.3 If the Owner on-sells the Goods prior to the expiration of the time period set out in clause 6.1, the Owner is deemed to have accepted the Goods.
7.1 The warranties on equipment shall be as per the manufacturer’s stated warranty period from the date of installation or delivery.
7.2 It is the Owners obligation to comply with the warranty service instructions provided.
7.3 If a defect should occur, the Seller will at their sole discretion decide whether the defective product is to be repaired or replaced. If such a repair or replacement is expected to take longer than 5 working days, the Seller may choose at its discretion to provide a temporary replacement product on loan for the use of the Owner. This will be for an interim period until the item can be either repaired or replaced.
7.4 If the Seller is unable to complete the repair, then the Seller reserves the right to appoint a qualified servicing agent to act on their behalf.
7.5 If the Owner’s premises are located more than an hour’s drive from the Seller or appointed servicing agents normal place of work, the Seller will meet the cost of the first hour’s travel. Any travel costs more than this will be for the care of the Owner.
7.6 All items returned under warranty will be at the expense of the Owner.
7.7 This warranty does not cover and the Seller shall not be liable for the following:
- Defects, damage, or other conditions caused, in whole or in part, by misuse, abuse, negligence, alteration, accident, freight damage, tampering, or failure to seek and obtain repair or replacement in a timely manner.
- Matching of colour, grain, or texture except to commercially acceptable standards.
- Changes in colour caused by natural or artificial light.
- Products which are not installed, used, and properly cleaned and maintained as required in the ‘installation’ and or ‘Installation/Operation’ Manual for the applicable product.
- Products considered to be of a consumable nature.
- Accessories or parts not supplied by the Seller.
- Charges by anyone for adjustments, repairs, replacement parts, installation, or other work performed upon or in connection with such products which are not expressly authorised in writing in advance by the Seller.
- Costs and expenses of routine maintenance and cleaning.
8. Licences and Permits
Where an order requires the Owner to hold a licence, registration, or permit, or receive certain permission from the relevant regulatory authority, for the works to be delivered then:
8.1 The Owner warrants to the Seller that they hold all licences, registrations, permits, or permissions necessary to enable delivery of the works.
8.2 The Owner indemnifies the Seller from, and against all claims, demands, actions, causes of action, suits, proceedings, losses, damages, costs, expenses, and liabilities suffered or incurred by them because of any failure to hold such licences, registrations, permits, or permissions necessary to enable delivery of the works.
8.3 The Owner acknowledges that the Seller can request proof that the Seller holds a valid licence, registration, permit number or evidence of permission from the relevant regulatory authority and that should it not be provided that the Owner can decline to deliver the works until it is provided.
8.4 The Owner acknowledges that where any failure to be able to deliver the works is as a result of the failure of the Owner to hold necessary licences, registrations, permits, or permissions then the Seller shall be entitled to invoice the Owner on the date that the Seller is ready and willing to deliver the works and the Owner shall be obliged to pay for the works regardless of their delivery.
8.5 These provisions apply in respect of, but are not limited to, X-Ray equipment, irradiating apparatus under the Radiation Safety Act 2016 and associated regulations and other relevant medical devices under the Medicines Act 1981 and associated regulations.
9.1 If the Owner defaults in payment by the due date of any amount payable to the Seller, then all money which would have become payable by the Owner to the Seller at a later date on any account, becomes immediately payable without the requirement of any notice to the Owner, and the Seller may, without prejudice to any of its other accrued or contingent rights:
a) Charge the Owner interest on any sum due at the rate of interest equal to the Sellers bank’s commercial overdraft interest rate at the due date for payment plus 5%, calculated daily, for the period from the due date until the date of payment in full.
b) Charge the Owner for, and the Owner must indemnify the Seller from, all costs and expenses (including without limitation all legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with the Agreement or to recover any Goods.
c) Cease or suspend supply of any further Goods or Services to the Owner.
d) By written notice to the Owner, terminate any other uncompleted contract with the Owner.
10. Privacy Act
10.1 The Owner acknowledges that personal information collected or held by the Seller is provided and may be held, used, and disclosed for the purpose of enabling the Seller to notify any credit agency of default on any obligation of the Owner to the Seller and enabling the Seller to provide such personal information to any credit agency so such credit agency can maintain correct accounting and credit records.
11.1 The works shall be deemed to be completed when either (in the Seller’s sole opinion) the works have been completed in accordance with the plans and specifications, or the Owner is given notice of practical completion.
11.2 The time agreed for delivery (if any) shall not be an essential term of this agreement unless the parties agree otherwise in writing to make time of the essence.
11.3 Any claim by the Owner as to incorrect performance or breach of this contract must be made to the Seller in writing within seven (7) days of completion (time being of the essence) of the works otherwise the Seller shall be entitled to presume that the works have been delivered in good order and without defect or shortage in quantity.
12. Limitation of Liabilities
12.1 If the Seller is ever liable to the Owner, or any other person, and the Seller cannot rely on the exclusions or representations, warranties, or liabilities set out in these terms and conditions then the Seller’s liability is in all cases limited to the Price.
13. Force Majeure
13.1 If delivery or completion of any works is prevented or delayed, in part or all, by reason of Acts of God, or the consequence thereof, the Seller may, at its option, perform the contract or the unfulfilled portion thereof within a reasonable time from the removal of the cause preventing or delaying performance, or rescind unconditionally and without liability, the contract or the unfulfilled portion thereof. This includes, but is not limited to fire, flood, typhoon, earthquakes, or by reason of riots, wars, hostilities, government restrictions, trade embargos, strikes, lockouts, labour disputes, boycotting of goods, ship shortage, manufacturers bankruptcy, delays or damage in transportation or other causes beyond the Seller’s control.
14. Caveat and Mortgage
14.1 The Owner agrees that the Seller shall have the right to complete and register a mortgage over any property owned by the Owner to secure any amount outstanding and due to the Seller and that the Seller shall have the right at its discretion to place a caveat on any such property for the purpose of this clause. The Owner hereby irrevocably appoints the Seller as the attorney of the Owner for the purpose of the Seller exercising its rights under this clause whilst any amount remains in default.
14.2 Should the Seller elect to proceed in any manner in accordance with clause 14.1, the Owner and/or guarantor shall indemnify the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis.
The above terms and conditions have effect except as expressly modified or inconsistent with any other express terms and conditions made between the vendor and the customer from time to time in respect of sales of the products.