In these terms and conditions "Dräger" means Draeger New Zealand Ltd (Company number 6253409) or any related corporation or legal entity. The Customer means the person, firm, corporation, government or semi-government authority purchasing goods and/or services from Dräger. Goods means such goods and services as Dräger may at its discretion agree to provide to the Customer from time to time.
1. GENERAL TERMS
1.1 These terms and conditions shall apply to the supply of goods and/or services by Dräger to the Customer.
1.2 Dräger is not bound by any terms or conditions contained in any purchase order, purchase form or other similar document of the Customer delivered to Dräger with respect to the purchase of or order for goods, services or otherwise which are at variance with, in derogation from or additional to these general terms and conditions. The Customer is bound by these general terms and conditions notwithstanding anything to the contrary in such purchase order, purchase form or other similar document.
2. THE CONTRACT
2.1 The matters referred to in these terms and conditions constitute a contract between Dräger and the Customer. These terms and conditions shall prevail over any other terms and conditions that may contain terms and conditions that may be inconsistent or contrary to those contained herein.
2.2 These terms and conditions shall apply to the exclusion of all other agreements and prior representations, unless subsequently evidenced in writing by Dräger and the Customer, and, together with each invoice and any supplementary agreement or other agreed document that references or is ancillary to this agreement, shall be the whole of the agreement between Dräger and the Customer.
3. DESCRIPTION OF GOODS
3.1 The description of goods and/or services as stipulated on invoices or order forms is provided by way of identification only and the use of that description shall not constitute a description under any contract of sale by description. Any description of any goods in any brochure, document or other sales literature used by Dräger shall not form part of any agreement between Dräger and the Customer.
4. DESIGN CHANGES
4.1 Dräger shall have no obligations to make alterations in the design and construction of goods previously accepted and delivered even though design changes are incorporated in the goods subsequently being delivered.
5. PRICE VARIATION
5.1 Subject to paragraph 5.2 hereof the price shall be as quoted in writing by Dräger. If a price is not quoted then it shall be in accordance with Dräger’s current price list. Verbal quotations are subject to written confirmation.
5.2 Dräger reserves the right without notice to alter the price of goods and services whether or not a deposit or part payment has been received by Dräger for such goods or service and to invoice the Customer for any such extra amount where the costs of the goods to Dräger has altered due to circumstances beyond its control including but without limiting the generality of the foregoing any variation in Dräger’s exchange rates, GST or other taxes, levies, imposts, duties, premiums, fees or charges however designed and to correct errors and omissions.
6. PAYMENT
6.1 Payment is to be made to Dräger for goods and services within thirty (30) days from the date of invoice.
6.2 If the Customer fails to comply with the terms of payment in paragraph 6.1 hereof then:
6.2.1 the Customer agrees that it will pay Dräger interest from the due date of payment to the date payment is made in full (both before and after judgement) equal to two (2) per centum per month on all monies outstanding including all charges from time to time owing by the Customer.
6.2.2 the Customer shall be liable for all costs including GST relating to any legal action taken by Dräger to recover moneys due from the Customer, these costs including GST will be payable by the Customer to Dräger on demand.
6.2.3 Dräger reserves the right to discontinue or suspend the supply of goods and/or service to the Customer.
6.3 No discount shall be allowed except where otherwise agreed by Dräger in writing.
6.4 Invoices may be issued by Dräger and will be payable by the Customer in respect of every delivery notwithstanding that the balance of the order has not been nor will not be delivered for any reason.
7. APPLICATION FOR A CREDIT ACCOUNT
7.1 The Customer agrees that for the purpose of processing my/our application for commercial trade credit account, the Customer agrees to Dräger receiving from a credit reporting agency a credit report containing personal financial information about them (Privacy Act 1993)
7.2 The Customer agrees that Dräger may give to and seek from other credit providers named in this credit application and any providers that may be named in a credit report issued by a credit reporting agency information about their credit arrangements. The Customer understands that this information may include any information about their credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive under the Privacy Act 1993.
7.3 Where a Customer opens a credit account with Dräger the Customer may be required to nominate referees or guarantors (that shall be acceptable to Dräger) prior to credit being approved by Dräger.
7.4 Dräger reserves the right to withdraw at any time any credit facilities extended to the Customer where payment is not received or where such other acts or omissions of the Customer are objectionable to Dräger.
8. DELIVERY AND RETURN OF GOODS
8.1 Unless Dräger otherwise agrees in writing GST, delivery, carriage insurance, handling, storage and packaging and any other expenses relating to the goods shall be charged to and paid by the Customer.
8.2 In the absence of specific instruction from the Customer, Dräger will select the carrier and make such agreement with the carrier on behalf of the Customer as Dräger in its absolute discretion deems appropriate.
8.3 Dräger will endeavour to deliver the goods (or provide services) within the Customer’s required delivery period, but subject to Clause 8.4 shall not in any event be liable for any loss or damage directly or indirectly sustained from any failure to deliver within such period. Time shall not be the essence of this contract and any delay shall not be the basis of the Customer’s cancellation of this contract.
8.4 Dräger shall not be liable for any loss or damage resulting from any failure to give notice of any delay in delivery.
8.5 Dräger reserves the right to deliver the goods by installments at its absolute discretion and in such circumstances the Customer shall accept delivery of such goods by installments.
8.6 Where in order to deliver or collect goods, Dräger or its carrier enters upon the Customer’s premises the Customer shall provide full and safe access to Dräger or its carrier and shall be liable for and indemnify Dräger and its carrier against the cost of all loss, damage to property and injury to persons, occurring directly or indirectly as a result of the failure by the Customer to ensure the said full and safe access.
8.7 The Customer shall be responsible for providing adequate labour and/or material handling equipment for the loading and unloading of goods at its premises.
8.8 Where Dräger agrees to collect goods from the Customer’s premises the Customer shall ensure that the goods are all available for collection at an easily accessible central point and that they are ready for loading at the time Dräger arrives to collect them.
8.9 The Customer’s return of goods to Dräger for credit requires the prior written approval of Dräger and issuance of a Returned Goods Authorisation Number (RGA).
8.10 Where goods are being returned to Dräger, the Customer shall ensure that they are returned complete, together with all operations manuals and accessories, in a safe condition, having regard to the risk to:-
8.10.1 persons handling them and in their vicinity; and
8.10.2 damage to the goods themselves.
8.11 Claims by the Customer for short, damaged or incorrect deliveries must be made within fourteen (14) days from the date of invoice.
8.12 Dräger will not be liable or responsible for any loss or damage, cost or expense suffered by the Customer resulting directly or indirectly from any failure by Dräger to fulfil any of the terms and conditions herein, including any obligation or liability in respect of any damage to or malfunction of any item supplied, if such failure damage or malfunction is due to any delay or other cause beyond the control of Dräger.
8.13 Where goods are incorrectly ordered by the Customer, supplied and subsequently returned, a restocking fee of fifteen (15) percent of the purchase price of the goods shall be paid together with any delivery fee and GST incurred by Dräger as a result thereof within thirty (30) days from the date of invoice, which the parties agree and acknowledge is a genuine pre-estimate of Dräger's loss.
8.14 No return of goods will be accepted or a credit note issued by Dräger, for any goods and/or services specifically acquired for the Customer.
8.15 If Dräger is of the opinion that goods when returned are otherwise than in the same condition as when they were delivered to the carrier or directly to the Customer a charge equal to the cost necessary to restore the goods to their original condition shall be payable by the Customer upon demand by Dräger.
8.16 If goods are returned to Dräger which Dräger is unable to resell to a third party or resell for the same amount as was sold to the Customer then Dräger may charge the Customer an amount equal to the loss incurred as a result of the Customer returning the goods.
9. OWNERSHIP AND RISK
9.1 Notwithstanding any credit granted to or anything contained in these terms and conditions to the Customer, Dräger shall retain the full legal and beneficial ownership and title in and to all the goods delivered to the Customer by Dräger until the Customer has paid to Dräger the full amount due on all outstanding invoice(s) to Dräger. Until then the Customer will hold and sell the goods as agent for Dräger and the Customer shall store the goods separately and with the interest of Dräger as owner clearly marked on the goods and the area in which they are stored.
9.2 The Customer will ensure that the goods are kept in good and serviceable condition.
9.3 The Customer will secure the goods from risk, damage and theft; and keep the goods fully insured against such risks that are usual or common to insure against in a business of a similar nature to that of the Customer.
9.4 Any proceeds received by the Customer from the resale of the goods shall be held by the Customer as trustee for Dräger to the extent of the unpaid invoiced price of those goods and the proceeds of the sale shall be forwarded to Dräger in full as soon as is reasonably practicable after receipt by the Customer and where the proceeds of sale are less than the amount owing by the Customer to Dräger, such proceeds shall be applied in practical satisfaction to the invoiced price or amount outstanding until all monies owing to Dräger for all goods and services supplied by Dräger to the Customer have been paid for in full by the Customer to Dräger.
9.5 Should the goods supplied by Dräger to the Customer be lost or damaged after delivery and prior to payment, the Customer hereby agrees to indemnify Dräger for such loss and damage.
9.6 After the goods leave Dräger’s premises they shall be at the risk of the Customer and any damage to the goods shall be at the expense of the Customer.
9.7 If the Customer does not pay for any goods and/or services on the due date then Dräger is hereby irrevocably authorised by the Customer to enter the Customer’s premises (or any premises under the control of the Customer or as agent of the Customer in which the goods are stored at such premises) and use reasonable force to take possession of the goods without liability for the tort of trespass, negligence or payment of any compensation to the Customer whatsoever, and the Customer indemnifies Dräger against any claim for loss, damage or expense arising as a result of Dräger taking action under this clause 9.7.
9.8 If Dräger is unable to resell the goods at the same price or more as was invoiced to the Customer by Dräger, then Dräger shall be entitled to make claim, demand or institute, if necessary, an action to recover any loss or damage sustained by Dräger due to Dräger not being able to obtain the invoiced price plus the added expenses incurred by Dräger as a result of non-payment by the Customer.
9.9 The Customer acknowledges that by virtue of 9.1 and 9.4 (above), Dräger has a security interest in the goods for the purposes of the Personal Property Securities Act 1999 (PPS Act) and to the extent applicable the PPS Act applies.
9.10 The Customer acknowledges that Dräger may do anything reasonably necessary, including but not limited to registering any security interest which Dräger has over the goods on the Personal Property Security Register established under section 139 of the PPS Act in order to perfect the security interest and comply with the requirement of the PPS Act.
9.11 The Customer agrees to do all things reasonably necessary to assist Dräger to undertake the matters set out in 9.10 (above).
9.12 The Customer waives its rights under the PPS Act to receive a copy of any verification statement otherwise required by the PPS Act. If applicable, so far as permitted by section 107 of the PPS Act the Customer will have no rights under sections 114, 116, 120, 121, 125, 126, 127, 129 and 131 and 133 of the PPS Act, including the right to receive any notices. The Customer agrees if applicable that Dräger may exercise its rights under sections 109 and 120 concurrently, and that repossession and retention of goods under sections 120 – 123 will immediately extinguish any rights and/or interests the Customer may have in the goods and that Dräger may allocate any monies it receives to debts, charges and expenses in any priority it determines.
9.13 The Customer agrees that the Customer's account may be debited with the costs of registration of a financing statement and all other costs associated with the perfection and enforcement of the security interest (including full client/solicitor costs).
9.14 The Customer shall ensure that all third parties who may from time to time hire or lease any goods subject to a security interest in favour of Dräger (when sold on credit and not paid for in full) from the Customer are advised of Dräger's security interest in such goods.
10. CANCELLATION
10.1 To the full extent permitted by law, orders for goods specifically acquired by Dräger for the Customer shall not be cancelled by the Customer without Dräger’s written consent. The cancellation of any order shall be made on terms which indemnify Dräger against all loss.
11. CUSTOMER’S SPECIAL REQUIREMENTS
11.1 Changes to the specifications at the Customer’s request either at the time of placing the order or thereafter will only be accepted at Dräger’s discretion. Such changes will only take effect when agreed in writing by Dräger and which may result in a price increase.
12. WARRANTIES AND EXTENT OF LIABILITY
12.1 The Consumer Guarantees Act 1993 (CGA), the Fair Trading Act 1986 (FTA) and other statutes may impose warranties, conditions and obligations on Dräger which cannot by law (or which can only to a limited extent by law) be excluded. Other than as expressly provided herein, 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 herein, or in other documents provided to the Customer by Dräger and which specifically relate to the goods in question, are excluded.
12.2 To the fullest extent permitted by law, Dräger limits its liability for breach of condition or warranty to:
12.2.1 In the case of goods, any one (at Dräger’s election) of the following (subject to clause 12.4):
12.2.1.1 the replacement of the goods or the supply of equivalent goods;
12.2.1.2 the repair of goods;
12.2.1.3 the payment of the cost of replacing the goods or of acquiring equivalent goods;
12.2.1.4 the payment of the cost of having the goods repaired; or
12.2.2 In the case of services either (at Dräger’s election) of the following (subject to clause 12.4):
12.2.2.1 the supplying of the services again; or
12.2.2.2 the payment of the cost of having the services supplied again.
12.3 Subject to clause 12.2.1, Dräger warrants that the goods sold are free from defective materials and workmanship.
12.4 The warranty in clause 12.3 does not apply if:
12.4.1 the defect becomes apparent more than twelve (12) months after the date of the invoice;
12.4.2 the goods have not been used or stored in accordance with instructions issued by Dräger;
12.4.3 the defects are in a manufactured component supplied by Dräger to another;
12.4.4 the defective part is made of rubber, glass, synthetic or ceramic materials;
12.4.5 the goods have been subject to any alteration or repair by any person other than authorised in writing by Dräger. If the alteration or repair is unrelated to the defect then the warranty remains applicable;
12.4.6 the Customer fails to notify Dräger of its claim under this clause within fourteen (14) days of the defect becoming apparent and to return the goods to Dräger on its request to do so;
12.4.7 the indicated shelf life of the goods has expired.
12.5 Except as provided in Clause 12.3.1 and 12.4 above, Dräger will not be liable for economic or consequential loss, injury, expense or damage to the Customer or any person to whom the goods are transferred, or in respect of any person to whom the Customer or the person using the goods make them available or their property, arising from any defect in or failure of the goods, notwithstanding negligence on the part of Dräger, its suppliers, servants, agents, successors or assigns.
12.6 Notwithstanding clause 12.1 and 12.3, the maximum aggregate liability of Dräger for any claims made by the Customer (whether in contract, tort or otherwise), shall be limited to the lesser of:
12.6.1 the amount of the price of the goods concerned; or
12.6.2 the actual loss or damage suffered by the Customer.
12.7 If goods are repaired under warranty they will be returned to the purchaser or ultimate user carriage paid.
12.8 The Customer warrants that the goods purchased by the Customer will not be used predominantly for personal, domestic or household use and it is acknowledged and agreed that:
12.8.1 the Customer is acquiring the goods for the purposes of a business in terms of sections 2 and 43(2) of the CGA;
12.8.2 the goods are supplied and acquired in trade for the purposes of the FTA and the parties agree to contract out of sections 9, 12A and 13 of the FTA; and
12.8.3 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.
13. REPAIRS AND PARTS
13.1 To the fullest extent permitted by law, Dräger does not promise the ready availability of parts for such goods as may be required to be repaired from time to time.
14. TESTING OF CYLINDERS
14.1 Dräger may at the Customer’s expense inspect the test cylinders prior to each refill in order to determine compliance of the cylinders with all relevant standards including all applicable standards of Standards New Zealand and the Standards Association of Australia. Dräger may refuse to fill a cylinder if in Dräger’s opinion it does not comply with such standard, whereupon the cylinder will be destroyed in accordance with the applicable standards.
15. GOVERNING LAW AND JURISDICTION
15.1 These terms and conditions and the contract governed thereby shall be governed by and construed in accordance with the laws from time to time, of New Zealand.
16. INDEMNITY
To the full extent permitted by law the Customer:-
16.1 agrees to indemnify and at all times hereafter to keep indemnified and hold Dräger, its servants and agents and each of them harmless against all claims for loss or damage (whether as a result of negligence or otherwise) arising directly or indirectly out of the Customer’s use, possession, ownership or resale to a third party or out of the use, possession or ownership by such third party of the goods or any part or parts thereof whether separately or in combination with any other equipment or material.
16.2 agrees that the indemnity in Clause 16.1 shall survive the termination of this contract and shall extend to cover all alleged defaults or defects in the goods or part(s) thereof or instruction supplied for use in connection with the goods or out of any failure of the goods to perform a particular task or to achieve a particular result or to comply with any particular specification.
17. FORCE MAJEURE
17.1 To the extent permitted by law the Customer releases Dräger from all and any liability for and in relation to or occurring out of any failure or transaction in performance of its obligation hereunder due in part or in whole to any cause whatsoever beyond Dräger’s reasonable control.
18. IMPLIED CONDITIONS AND WARRANTIES
18.1 All implied conditions and warranties (statutory or otherwise) are hereby expressly excluded from this contract insofar as they are capable of being excluded by agreement.
19. COLLATERAL WARRANTIES AND REPRESENTATIONS
19.1 All prior statements and representations or collateral warranties that may have been given whether oral or in writing by Dräger or its servants or agents prior to the delivery of the goods and/or services are expressly excluded to the full extent allowed by law and accordingly Dräger is released by the Customer from any liability as a result of such statement or representation.
20. FITNESS FOR PURPOSE
20.1 The Customer shall not rely upon Dräger’s expertise or judgement as to fitness or suitability of use for which the Customer may require the goods and or service.
21. WAIVER
21.1 Failure by Dräger to insist upon strict performance by the Customer of any terms and conditions contained herein shall not be taken to be a waiver thereof or of any rights of Dräger in relation thereto and in any event shall not be taken to be a waiver of the same terms and conditions on any subsequent occasion and shall not discharge the Customer from any of its obligations pursuant to these terms and conditions.
22. LIENS
22.1 In addition to any lien to which Dräger may be entitled by statute or common law, Dräger shall in the event of the Customer’s insolvency, bankruptcy or winding up, be thereupon entitled to a general lien on all property whatsoever owned by the Customer and in Dräger’s possession at the time.
22.2 The Customer agrees that if demand is made by Dräger the Customer on receiving such a demand will immediately execute a mortgage with a priority amount of all monies owing by the Customer plus any interest, and otherwise on the terms and conditions contained in the then current edition of the ADLSi Memorandum of Mortgage (All Obligations) form (such form to be prepared by Dräger’s solicitor, at the Customer’s cost), or other instrument of security, or consent to caveat, as required, and against the event that the Customer fails to do so within a reasonable time of being so requested, the Customer hereby irrevocably and by way of security, appoints any credit manager or solicitor engaged by Dräger to be its true and lawful attorney to execute and register such instruments. Such lien will cover the unpaid price of any goods and/or services supplied by Dräger to the Customer.
23. NOTICES
23.1 All Notices on Accounts shall be in writing and may be hand delivered or mailed postage pre-paid addressed to the postal address of either Dräger or the Customer as notified to the other from time to time in writing. Any such Notice or Demand or Account shall be deemed to have been received five (5) business days after dispatch if sent by mail, or the next business day if delivered by hand or facsimile transmission or email.
24 VOIDABILITY OF TERMS AND CONDITIONS
24.1 The Customer acknowledges that these terms and conditions are subject to any rights and obligations arising between the parties pursuant to any legislation or by implication of a law and specifically acknowledge that this contract is not intended and will not operate to override any rights and obligations that cannot be excluded at law . To the extent that any term or condition of this contract is void, voidable or repugnant to the provisions of any applicable legislation of New Zealand then this contract shall be read as if that term or condition were deleted and the balance of this contract shall be enforceable.
Revision: 29-Apr-2019