The use of the word Now Sound in this document means Now Sound Ltd
PRICE AND TERMS OF PAYMENT
1. The Customer shall pay the price indicated on the invoice, order form or other similar document issued by Now Sound and, where Goods and Services Tax or other government levies which may become payable in respect of the supply of the goods or in respect of any amount payable under Clause 4, the Customer shall pay the tax to Now Sound. All prices are quoted FOB ex warehouse. E& O E.
2 The Customer shall pay all amounts due without deduction or setoff to Now Sound in cash on or before delivery UNLESS Now Sound has previously agreed to provide credit facilities in which case payment shall be made on the 20th of the month following the date of delivery.
3. lf for any reason Now Sound considers that the Customer may be unable to meet its payment obligations to Now Sound as they fall due, Now Sound shall be entitled to take (in addition to any other remedies it may have) all or any of the following actions until those obligations are fully satisfied:
(a) demand immediate payment of part or all of amounts for supplies made whether due or not: and
(b) require security for such amounts to its full satisfaction before any further
supplies are made to the Customer; and
(c) withhold without notice deliveries of goods ordered by the Customer.
4. The Customer shall pay Now Sound monthly interest rate of 4% above the current overdraft rate which Now Sound has with the Bank of New Zealand in respect of all of the Customer's indebtedness which is overdue. Interest shall accrue on a daily basis from the date when payment is due until the date when payment is actually made whether before or after judgment and the Customer shall be liable to pay all expenses and legal costs of Now Sound as between solicitor and client in relation to obtaining remedy of any failure to pay.
5. Now Sound shall be entitled to cancel all or any part of any contract or contracts with the Customer, in addition to its other remedies (including its right to recover all sums owing to it for deliveries already made), in the following circumstances:
(a) lf any amounts payable by the Customer to Now Sound are overdue; or
(b) lf the Customer fails to meet any obligation under this or any other contract or
obligation to Now Sound: or
(c) lf the Customer becomes insolvent; or
(d) lf a receiver is appointed in respect of the assets of the Customer; or
(e) If the Customer no longer carries on business or threatens to cease carrying on
(f) If an arrangement with the Customer's creditors is made or likely to be made;
(g) If the ownership or effective control of the Customer is transferred or the nature of the Customer's business is materially altered.
(h) If the Customer makes default in taking delivery in time.
6. On cancellation of the Contract Now Sound shall be entitled to dispose of the balance of the goods contracted for and the Customer shall indemnify Now Sound for any loss in price incurred by it on realisation against the price at which the goods were contracted to be bought by the Customer.
SUPPLY AND DELIVERY
7. Unless expressly stated otherwise on Now Sound invoice all prices exclude freight and insurances. Where Now Sound delivers or arranges freight Now Sound shall not be liable for any loss or damage to the goods during transportation, even though such loss or damage may be caused by Now Sound' negligence or other default or that of its servants or agents.
8. Where the Customer fails to accept the goods by the delivery date specified or such later date as the parties agree the Customer shall pay reasonable storage costs until such time as the Customer accepts the goods, such costs to be determined by Now Sound.
9. lf the goods are ready for delivery on the date specified by the order of the Customer and the Customer does not take delivery when requested by Now Sound to do so, Now Sound shall be entitled to invoice the Customer for payment in accordance with Clause 2.
RISK AND TITLE
10. Title in the goods shall pass from Now Sound to the Customer when the Customer has discharged all outstanding indebtedness (whether in respect of the goods supplied or otherwise) to Now Sound. Nevertheless the risk of any loss damage or deterioration to the goods due to any cause whatsoever shall borne by the Customer from the time the Customer takes possession of the goods.
11. Until title passes from Now Sound to the Customer in accordance with Clause 10, the following terms shall apply:
(a) the Customer shall be deemed to be in fiduciary capacity as bailee of Now Sound in respect of any goods supplied by Now Sound; and
(b) the Customer shall, if required by Now Sound, store the goods in such condition and place that it is clear that they are owned by Now Sound: and
(c) the Customer shall not under any circumstances mix the goods supplied by Now Sound with other goods in any manner whatsoever.
(d) The Customer shall on request disclose to Now Sound all relevant information regarding the goods.
12. If the Customer makes default in payment for the goods in accordance with Clause 2 or if Now Sound makes demand in terms of Clause 3 or cancels any contract in terms of Clause 5, although such goods may be in the possession of the Customer. The Customer hereby irrevocably gives Now Sound, its agents and servants leave and licence to enter on and into any property occupied by the Customer has a license to enter without notice in order to inspect, search for or remove goods supplied and Now Sound shall not be liable to the Customer or any third party for the exercise of its rights under this Clause.
13. Where Now Sound lawfully resells stores or repossesses any goods agreed to be sold the Customer shall indemnify Now Sound for all costs thereof including any legal costs on a solicitor and client basis.
14. If delivery is delayed for any reason, Now Sound shall not be liable to the Customer or any other party for any loss sustained due to such delay and Now Sound reserves the right to cancel delivery of the goods or such instalments thereof without prejudice to its rights to recover all sums owing to it in respect of deliveries already made.
15. The supply of goods shall not include any terms whether statutory or otherwise, as to fitness or suitability for purpose; as to merchantability relating to or arising from any descriptions or representations; and no warranties shall arise from any dealings prior to or in the course of any supply. No person other than the Manager of Now Sound and then only in writing has the authority to vary any of the terms of this document or of any supply. To the extent these provisions purport to limit or contract out of the Consumer Guarantees Act '1993 they shall apply only on the basis that the Customer acquires or holds itself out as acquiring the goods or products for the purposes of a business.
16. The Customer agrees to indemnify Now Sound against any liability or cost incurred by Now Sound under the Consumer Guarantees Act 1 993 as a result of any breach by the Customer of its obligations contained in these terms and Conditions of Sale.
17. Now Sound will pass on the benefits of manufacturers' warranties to the Customer to the extent it is permitted to do so without itself being directly liable to the Customer under such warranty. Now Sound does not undertake that repair facilities and parts will be available for the products. Now Sound may at its own discretion notify the manufacturer of the products of any defect notified by the Customer: and/or request the manufacturer to repair or replace any defective goods.
18. Any warranty may be voided by damage or misuse of the products, problems caused by the use or misuse of software, negligent installation or operation, inadequate packaging cleaning or maintenance, unauthorized repairs, modifications or the addition of incompatible hardware.
19. In so far as the provisions of Clauses 14 tc i'3 may apply the repairs shall be carried out on an "on site" basis within the Auckland metropolitan area and or a return to base basis elsewhere.
CLAIMS AND PRIVACY
20. In respect of any breach by Now Sound whether in contract, tort or otherwise howsoever Now Sound' liability shall wholly cease -14 days after delivery or part delivery as the case may be unless by then:
(a) the Customer has given written notice of the claim including: where applicable Now Sound' despatch number and/or invoice number and specific details of any defects: and
(b) the Customer has supplied samples of any goods if any) having the claimed defects.
21. Now Sound may at its complete discretion instead of giving a refund or paying damages, replace or give credit for all or any part of goods supplied and established to be in breach of Now Sound' obligations. In any event the liability of Now Sound in respect of any supply shall be limited to an amount equal to the purchase price of the goods supplied and Now Sound shall not be liable to the Customer whether in contract, tort or otherwise for any indirect or consequential loss or damage or general damages and shall not be liable to any third party whatsoever.
22.Where goods are supplied on credit the Customer authorizes Now Sound to obtain information about the Customer or any third party and to divulge that information to any third party in the course of Now Sound business including but not limited to and credit or debt collection agency for the purposes of credit assessment or debt collection. Any information collected will be retained by Now Sound for so long as the Customer continues to purchase goods from Now Sound. Now Sound will provide the Customer with access to the information for review and correction.