Terms and Conditions of Sale
New Zealand
For New Zealand SKOPE Approved Dealers
Price
Prices quoted by the seller to the buyer will remain valid, subject to the following provisions of the clause, for a period of 30 days from the date of such quotation and thereafter will be liable to alteration at the seller’s discretion. Unless otherwise specifically stated by the seller, prices quoted do not include the cost of transport, freight, insurances, duties, taxes, packing or crating, and other rates and charges (including bank charges) for which an extra charge will be made where the seller considers that such extra charge is appropriate. All prices quoted are exclusive of goods and services and/or sales taxes. Prices quoted are based on exchange rates, costs of labour, materials, transport, freight and insurances, indirect taxes and other costs, duties or expenses applying at the date of quotation. Any variations in such rates, costs, duties, taxes or expenses subsequent to such price quotation and either before the placement of or during the execution of an order will be charged in addition to the quoted price and will be properly charged to the buyer’s account. Prices quoted are based on materials being available when required, and any increase due to necessary substitution of other materials will be properly charged to the buyer’s account.
Reservation of Title
Risk in any goods supplied by the seller to the buyer shall pass when such goods are delivered to the buyer or to custody on the buyer’s behalf but the ownership of any goods supplied by the seller to the buyer shall remain with the seller until payment in full is made for the goods the subject of the contract and for all other goods supplied by the seller to the buyer.
Until such payment is made:
The seller has a right to call for or recover and and re-sell any such goods (for which purposes the buyer agrees the seller may enter the buyer’s premises by its servants or agent) and the buyer is under an obligation to deliver up such goods to the seller.
The relationship between the seller and the buyer shall be fiduciary, and the buyer shall hold the goods as bailee for the seller. The buyer shall store the seller’s goods separately from the buyer’s own goods.
The seller authorizes the buyer to sell the goods on. The buyer shall however not represent to any third parties that it is in any way acting for the seller and the seller will not be bound by any contracts with third parties to which the buyer is a party. The buyer shall hold any claim against any third party sub-buyer on trust for the seller.
The proceeds of any sale of the goods shall be paid into a separate account and the buyer shall account to the seller from this fund for the price of the goods.
Records shall be kept by the buyer of any goods owned by the seller.
The buyer is entitled to a period of credit but is but is required to account to the seller for the price of the goods once the goods are sold on and the proceeds of sale received.
Any provision or provisions or part of these provisions are severable and if any provision herein is held to be illegal or unenforceable for any reason, such illegality or unenforceability shall be applicable only to that portion of the said provision or provisions or part of the provisions which is or are in conflict with the remainder, and the remainder of the said provision or provisions or part of the provisions shall remain in full force or effect.
If the buyer incorporates or mixes the goods with other products and the goods are not readily identifiable and removable, the buyer shall store the mixed items separately and shall notify the seller of the location thereof and the ownership of such mixed items shall vest in the seller.
Upon sale of any such mixed items, if the proceeds of sale exceed the price or the balance of the price of the goods due to the seller from the buyer, the seller shall apply the balance of the proceeds of sale firstly in reimbursing the seller the cost and expense of the taking of possession and the sale of the mixed items and any damages which the seller has suffered as a result of any repudiation of the contract by the buyer and secondly in paying any sums due and owing to other creditors of the buyer in respect of other items and materials used in connection with the manufacture of the mixed items where the property in such items and materials has remained vested in such other creditors by reason of effective clauses and the claims of such other creditors have been notified to the seller by the buyer or its liquidator, administrator or receiver or by such other creditors.
Payment
Where goods are supplied to a New Zealand customer, payment is to be made by the 20th day of the month following the month in which the goods are invoiced. If payment is not received by that date, then the seller shall be entitled to charge interest on money due but not paid, at a rate equivalent to the unauthorized overdraft rate being charged from time to time by the sellers bankers plus a margin of 5% per annum from the date payment is due until the date payment is made. Payment for goods supplied outside of New Zealand shall be made by way of irrevocable letter of credit provided to the seller prior to dispatch of the goods from New Zealand. If payment terms are not adhered to credit facilities may be jeopardised.
Warranty
See the detailed refrigeration cabinet warranty.
Delay
If the seller shall state or accept any time for delivery or completion of the contract or any part thereof, then such time shall be approximate only and shall not be deemed to be the essence of the contract.
The seller shall not be liable for the failure to deliver or complete the contract or any delays in delivery or completing the contract where such failure or delay is occasioned by Act of God, fire, accident, war, strike, lock-out, shortage of labour, lack of skilled labour, breakdown of plant, non-delivery of raw materials, difficulty in procuring components or materials, delays by suppliers or sub-contractors, delays in transit, delays by the buyer, legislative or governmental or other prohibitions or restrictions, or any other event of any kind whatsoever which is beyond the control of the seller, and the buyer shall have no right of cancellation of the contract but shall accept delivery of the goods when the seller is reasonably able to deliver the goods having regard to the seller’s commitments to other customers.
Default
If the buyer:
Is in breach of any of the terms and conditions of the contract, and in the case of any default which may be remedied, fails to remedy the same within 7 days of receiving notice specifying the default; or
Shall have any execution levied against it or become bankrupt or insolvent or commit any act of bankruptcy or enters or intends to enter into any composition or arrangement with its creators or (in the case of a company) do any acts which would render it liable to be wound up or have a receiver appointed over its property or if it shall have a winding up order made against it or pass or attempt to pass a resolution for winding up or being party to the appointment of or have a manager or receiver appointed of the whole or any part of its property or undertaking then, without prejudice to any other or remedy available to the seller
The seller by written notice may forthwith enter, suspend or terminate the contract without prejudice to any other right or remedy it has at law or equity; and Whether or not such notice is given, payment for all goods produced by the seller whether delivered or not and any other moneys payable by the buyer shall immediately become due; and
The seller may enter upon the premises where any delivered goods are situated and take possession of and remove the same without being responsible for any damage thereby caused and may resell the same and apply the proceeds in or towards payment of the purchase price. All costs and expenses of or incurred by the seller as a result of any such action shall be payable by the buyer on demand.
Any suspension of the contract by the seller shall not prevent it terminating the contract during the period of suspension.
Cancellation
Cancellation of any order by the buyer will only be effective if accepted by the seller in writing and in any event shall be upon the condition that the buyer shall pay the seller for all work done and materials used by the seller in the execution of work on the buyer’s behalf up to the date of the cancellation. The seller reserves the right to charge a fee equating to 20% of the product purchase price as a re-handling fee.
Governing Law
The validity and interpretation of these conditions of sale and of the rights of the parties both pursuant to these conditions of sale and otherwise shall be governed by the laws of New Zealand and the parties shall submit themselves to the exclusive jurisdiction of New Zealand Courts.
Damage
Any damage on deliveries must be notified to the seller within 48 hours of receipt of goods. No claims for damage will be entertained after this time, or if a delivery docket has been signed stating that the product was received in good condition.
Interpretation
“The seller” means SKOPE® Industries Limited. “The buyer” means the person, firm or company who or which has offered to purchase the goods from the seller or to whom the seller has offered to sell the goods.
Australia
Note to the Contract: Many words have special definitions. See the end of the Terms and Conditions for the meaning of words and phrases used in this Contract.
Quotes and Price
SKOPE’s quote (“the quotation”) remains valid, subject to the following provisions, for the period of 30 days from its date.
Unless otherwise stated by SKOPE, any price quoted does not include the cost of transport, freight, insurances, duties, taxes, packing or crating, and other rates and charges (including bank charges) for which SKOPE may in its discretion make extra charge.
All prices are exclusive of goods and services and/or sales taxes. Prices quoted are based on exchange rates, costs of labour, materials, transport, freight and insurances, indirect taxes and other costs, duties or expenses (which are referred to in these terms as the component costs) applying at the date of quotation.
Any increase in the component costs (but not exceeding 10% of the quoted price) occurring subsequently to the quotation and before the execution of the Purchaser’s order will be added to the price.
In the event of component cost increase being greater than 10% of the quoted price SKOPE shall at its option have the right to increase the price by 10% of the quoted price or terminate this contract, terminate any payment made by the Purchaser to date and re-negotiate another contract with the Purchaser.
Acceptance
An offer or quotation by SKOPE shall become binding upon SKOPE only upon receipt of an unconditional written acceptance in such forms as SKOPE may require. Order forms and other documents provided to SKOPE by the Purchaser as confirmation of orders previously placed must be clearly marked with the word “confirmation.” Confirmation documents so marked will be treated as original orders.
If the Purchase Order accepted by SKOPE contains provisions which are inconsistent with these Terms, these Terms shall prevail unless expressly referred to in the Purchase Order.
Presentation to SKOPE of the Purchase Order shall comprise acceptance by the Purchaser of these terms.
Reservation of Title
Risk in any Product supplied by SKOPE to the Purchaser shall pass when such Product are delivered to the Purchaser or to custody on the Purchaser’s behalf but the ownership of any Product supplied by SKOPE to the Purchaser shall remain with SKOPE until payment in full is made for the Product the subject of the contract and for all other Product supplied by SKOPE to the Purchaser.
All warranties provided by SKOPE shall commence to run from the date of payment stated in the Invoice issued by SKOPE or delivery of the Product to the Purchaser whichever first occurs.
The Purchaser acknowledges that until payment has been made in full:
- The Purchaser is in possession of the Product as bailee for SKOPE.
- The Purchaser shall store the Product separately so that they are clearly identifiable as the property of SKOPE.
- Any sale of the Product by the Purchaser to a third party will be made by the Purchaser as agent for SKOPE and all sale proceeds will be held in trust for SKOPE as its property.
- In the event that the Purchaser combines the Product with, or adds to them and/or mixes the Product with his own goods, or articles, whether specifically constructed or otherwise, the Purchaser does so, on the condition that the resulting mixture of goods including the Product is the property of SKOPE.
- In the event that the Purchaser combines the Product with, or adds to them with the goods or articles of a third party, the Purchaser does so, on the condition that the resulting goods are deemed to be owned by SKOPE and the third party.
- The Purchaser confers on SKOPE the right to enter the Purchaser’s premises for the purpose of repossessing any goods and/or Product not paid for in accordance with these general conditions of sale.
In the event that, contrary to these terms, the Purchaser disposes of, alters, destroys or otherwise deals with the Product in a manner inconsistent with SKOPE’s ownership hereof whilst payment in full has not been made, and the Purchaser shall have received payment in respect of the Product, or for some other product and/or service which includes the Product, the Purchaser shall hold all moneys received, whether in whole or in part and whether for the Product or for other goods in conjunction with the Product in Trust first for SKOPE and shall account to SKOPE for the value of such Product and SKOPE may trace the proceeds.
Until payment for the Product is made in full the Purchaser shall from time to time and at any time on request provide a list of the current whereabouts of each unpaid Product to SKOPE plus the name of the person in possession of the premises in which the Product is situated and the times when reasonable access to the Product is available to SKOPE
To facilitate the exercise of SKOPE’s rights the Purchaser shall cause a licence to be granted to SKOPE by the person having possession of any premises on which the Product is situated from time to time and at any time to enable SKOPE to enter and view the condition of the Product and/or to exercise any rights SKOPE may have concerning the Product including to re-take possession. The licence shall be granted at the cost of the Purchaser and shall be available to SKOPE at no licence fee to SKOPE
In the event that SKOPE delivers any Product whereby any arrangement for deferred or payment later than thirty days from the date of SKOPE’s Invoice to the Purchaser is made between SKOPE and the Purchaser, including any arrangement whereby the property in the Product is to remain with SKOPE until SKOPE is paid for the Product then SKOPE may require and cause to be brought into effect a form of security over the Product in the form of chattel security normally applicable in the State or Territory in which the Product has been delivered including a charge over the Purchaser for the purpose of perfecting its entitlement to ownership of the Product. Such security and associated costs and fees shall be provided at the cost of the Purchaser.
Intellectual Property Rights
SKOPE’s Products incorporate its copyright, patent, design and trade marks rights (“SKOPE’s Intellectual Property”) which remain SKOPE’s permanent property.
SKOPE grants to the Purchaser and any person thereafter holding any interest in the Product the right to use SKOPE’s Intellectual Property to the extent only of use of the Product in its intended operation and not otherwise.
The Product when delivered will display SKOPE’s trade mark and other markings (“SKOPE’s markings”) which are part of SKOPE’s Intellectual Property. It is a condition of the contract that the Purchaser will maintain all SKOPE’s markings as they appear at the time of delivery and will not remove, deface, obscure or cover any of them so that they are less conspicuous than the time of delivery; all markings indicating the name SKOPE shall be maintained visible in good order and condition during operation of the Product.
It is a condition of this Contract and the Purchaser warrants and promises to SKOPE that if the Purchaser resells the Product or parts with possession of it the Purchaser will require any person howsoever obtaining possession of the Product at any time thereafter to agree to conditions in the same terms as to SKOPE’s Intellectual Property as are herein set out. The Purchaser agrees that it will indemnify SKOPE against any breach of these terms by any successor to possession of the Product.
The Purchaser shall be responsible to comply with all laws concerning labelling, use, operation and disposal of the Product.
The Purchaser acknowledges that SKOPE is selling the Product on the condition that the Purchaser will not infringe any of SKOPE’S Intellectual Property rights. The Purchaser acknowledges that damages alone does not comprise an adequate remedy for such a breach and SKOPE shall have the right without diminution of all of SKOPE’s statutory rights to protect its interests by Injunction or other appropriate process including the taking of possession of infringing matter.
In the event that the Purchaser shall make any drawing, diagram, picture, photograph, electronic representation, electronic program (“the Representation”) whereby the whole or any part of the Product is represented, the Purchaser agrees that the Representation shall be the SKOPE’S copyright property and its rights relating thereto shall be as owner.
In the event of there being any breach of the whole or any part of SKOPE’s Intellectual Property in respect of all or any Product held by the Purchaser whether by reason of this Contract or by any past and/or future Contract , SKOPE shall have the right in addition to all other rights at law, or as granted by this Contract or otherwise and at the cost of the Purchaser to re-take possession of the Product for the purpose of repair and/or making good any damage to SKOPE’s Intellectual Property and SKOPE. Purchaser shall meet all direct and incidental costs and outlays of the repair and/or making good any damage to SKOPE’s Intellectual Property on or associated with the Product including the cost of return of the Product to the Purchaser at the location where it was obtained and/or at any other place approved of by the Purchaser.
In the event of SKOPE identifying that the Purchaser is in breach of this Contract as to proper care of the Product and SKOPE reasonably identifies not less than five separate items of SKOPE’s product also in breach and under the control and/or direction and/or previous ownership of the Purchaser then the costs of any audit and/or inspection and/or to make good as referred to in the previous clause of this Contract of all of the Product obtained by the Purchaser from time to time or at any time shall be undertaken by SKOPE at the cost of the Purchaser.
In the event of SKOPE exercising its rights to take possession of any Product under this clause, the Purchaser will meet all proper costs, expenses and/or damages arising from SKOPE entering any premises in the possession of any third party in addition to all costs charges and expenses of SKOPE in so doing.
Payment
Payment is to be made strictly 30 days from the date of invoice. If payment is not made in full by that date then SKOPE shall be entitled to charge interest on money due but not paid, at a rate of 15% per annum calculated on daily balances commencing from the date payment is due until the date payment is made.
SKOPE shall not be obliged to deliver and/or process any Order and/or deliver Product to the Purchaser whilst any payment due from the Purchaser to SKOPE on any account is in arrears. The Purchaser will have no claim against SKOPE for any delay arising from the application of this provision.
Warranty
SKOPE will have clear unencumbered title to the Product on delivery to the Purchaser.
SKOPE gives the Purchaser the warranty described as “SKOPE Refrigeration cabinet warranty” set out in the edition of The SKOPE Cool Book current at the date of the quotation.
The Purchaser acknowledges that prior to presentation of the Purchase Order it has made all enquiries of SKOPE and other sources that it shall require concerning fitness for purpose of the Product and is satisfied that the intended placement and operation of the Product meet its operating specifications.
All warranties express or implied other than those set out above are excluded, save for any warranties or conditions which are included or implied by applicable law. Those warranties and conditions, to the extent that they can be excluded, are excluded from these terms. In any case, damages are limited to the cost of replacement of the Product. In no circumstances will damages or compensation be payable for indirect or consequential loss or damage.
The Purchaser’s claims under this contract are limited to the company accepting the Purchase Order only.
Delay
If SKOPE shall state or accept any time for delivery or completion of the contract or any part thereof, then such time shall be approximate only and shall not be of the essence.
SKOPE shall not be liable for the failure to deliver or complete the contract or for any delays in delivery or completing the contract where such failure or delay is occasioned by force majeure, and the Purchaser shall have no right of cancellation of the contract but shall accept delivery of the Product when SKOPE is reasonably able to deliver the Product.
Customers Statutory Right
These conditions, warranties and disclaimers are subject to the rights and remedies in respect of the items which the Purchaser has under the Federal Trade Practices Act and the State and Territory laws and shall apply to the extent not expressly excluded by such legislation.
Rejection
Except for defective items supplied by SKOPE, items returned for credit will only be accepted on the following conditions:
- Items returned must be obsolete, incomplete, damaged or otherwise imperfect. The amount of credit allowed in respect of items returned, if any, will be subject to a service charge at SKOPE’s rate currently in effect, unless the agreement specifies otherwise.
- Items cannot be rejected unless damaged or incorrectly supplied. Items specifically produced or procured to the Purchaser’s order cannot be rejected as being unsuitable or because they are no longer required by the Purchaser.
- No responsibility is accepted by SKOPE for items lost or damaged in transit during return to SKOPE.
- SKOPE reserves the right to charge a fee equating to 20% of the Product purchase price as a re-handling fee.
- Any damage on deliveries must be notified to SKOPE within 48 hours. No claims for damage will be entertained after this time, or if a delivery docket has been signed stating that the Product was received in good condition.
Default
If the Purchaser:
Is in breach of any of the terms and conditions of the contract, and in the case of any default which may be remedied, fails to remedy the same within 7 days of receiving notice specifying the default; or
Shall have any execution levied against it or become bankrupt or insolvent or commit any act of bankruptcy or enters or intends to enter into any composition or arrangement with its creditors or (in the case of a company) do any acts which would render it liable to be wound up or have a receiver appointed over its property or it shall have a winding up order made against it or pass or attempt to pass a resolution for winding up or be a party to the appointment of or have a manager or receiver appointed of the whole or any part of its property or undertaking
then, without prejudice to any other or remedy available to SKOPE:
SKOPE by written notice may forthwith enter, suspend or terminate the contract without prejudice to any other right or remedy it has at law or equity; and whether or not such notice is given, payment for all Product produced by SKOPE whether delivered or not and any other moneys payable by the Purchaser shall immediately become due:
SKOPE may enter upon the premises where any delivered Product are situated and take possession of and remove the same without being responsible for any reasonable damage thereby caused and may resell the same and apply the proceeds in or towards payment of the purchase price. All costs and expenses of or incurred by SKOPE as a result of any such action shall be payable by the Purchaser on demand.
Any suspension of the contract by SKOPE shall not prevent it terminating the contract during the period of suspension.
Cancellation
Cancellation of any order by the Purchaser will only be effective if accepted by SKOPE in writing and in any event in addition to SKOPE’s rights in law shall be upon the condition that the Purchaser shall pay SKOPE for all work done and materials used by SKOPE in the execution of work on the Purchaser’s behalf up to the date of the cancellation.
Specifications
The Purchaser acknowledges that the Product purchased is to be placed and operated in accordance with the Product specification. SKOPE products are carefully designed to operate within their published specifications and not otherwise. In the event of the Purchaser not operating the Product in strict accordance with its specifications the SKOPE warranty shall not apply.
Mistake
In the event that SKOPE makes any bona fide error or omission in any statement concerning the Product including any representation as to price the Purchaser indemnifies SKOPE from any claim otherwise available to the Purchaser, howsoever arising
Governing Law
The law applicable to this Contract of Sale shall in respect of any Purchaser whose address is in Australia or in any other country shall be the law applicable in the State of New South Wales and any court proceedings shall be brought only in that State.
Interpretation
Force majeure shall include Act of God, fire, accident, war, strike, lock-out, shortage of labour, lack of skilled labour, breakdown of plant, non-delivery of raw materials, difficulty in procuring components or materials, delays by suppliers or sub-contractors, delays in transit, delays by the Purchaser, legislative governmental or other prohibitions, or any other event of any kind whatsoever which is beyond the control of SKOPE
SKOPE means the company to which the Purchase Order the subject of this contract has been directed and for the purposes of the SKOPE’s Intellectual Property shall include that member of the SKOPE group of companies which is the owner of the relevant item of SKOPE’s Intellectual Property.
The Product means the goods described in the quotation and/or the Purchaser’s purchase order or if more than one, any one of them.
Quote means a statement by SKOPE to any person whereby SKOPE notifies the price and availability of the Product which it is prepared to sell subject to these terms.
Price shall be the price for the Product contained in the most recent of the documents comprising this contract and shall include SKOPE’s right to increase in accordance with this Contract.
The Purchaser means the person, who has entered into this contract to purchaser the Product from SKOPE and includes for the purposes of protection and or proper presentation of SKOPE’s Intellectual Property any person, firm or corporation thereafter which has possession of the Product for any reason and upon any terms.
Seller is the corporation in this contract described as the Seller.
Termination means a contract between SKOPE and the Purchaser herein shall be terminated immediately issuing notice which is duly delivered to the other at the delivering party’s choice of the last address provided by the intended recipient for delivery by letter, fax or email.
