The acceptance of a Quotation for Goods and/or Services includes these Terms and Conditions unless otherwise expressly agreed in writing and notwithstanding anything contained within the Buyer’s purchase order. The Buyer is deemed to have accepted and become bound by these Terms and Conditions by placing a purchase order or otherwise instructing alphaXRT to provide Goods and/or Services.
“Buyer” means the person, corporation, association, firm, company, partnership or individual purchasing the Goods from the Seller pursuant to this contract, including any successors or assigns.
“Goods” and/or “Services” means the goods and/or services to be provided to the Buyer by alphaXRT as described in alphaXRT’s Quotation or requested by the Buyer in a purchase order.
“Price” means the purchase price of the Goods and/or Services and any other costs payable by the Buyer as applicable to the Goods and/or Services as detailed in alphaXRT’s Quotation or as advised by alphaXRT separately.
“Quotation” means alphaXRT’s quotation issued to the Buyer detailing the Goods and/or Services and applicable price offered to the Buyer.
“alphaXRT” means alphaXRT Ltd, its successors and assigns.
The Buyer is bound to pay the Price from the time that the order is placed with the Seller, with there being no obligation on the Seller to inquire as to the authority of any person placing an order on behalf of the Buyer. No order may be cancelled without the Seller’s prior approval, and then only upon such terms as the Seller may specify. All additional costs incurred during installation of the Goods shall be to the Buyer’s account.
alphaXRT reserves the right to charge interest on all overdue balances at 1.5% per month until the date payment is received in full.
5.1 It is the responsibility of the Buyer to determine whether the Goods are consistent with and suitable for their intended purpose and use. Although alphaXRT takes all reasonable steps to ensure that descriptions, specifications, drawings and other information regarding the Goods are correct and accurate, that information does not constitute representations and/or warranties by alphaXRT in respect of the Goods, and alphaXRT is not liable for such error.
5.2 alphaXRT warrants that it has the right to dispose of and transfer title in the Goods to the Buyer; upon transfer of title, the Buyer will have undisturbed possession of the Goods; and other than required under these Terms, the Goods are free from security, charges or other encumbrances.
5.3 Subject to the warranty in 5.1 above, where alphaXRT is the distributor and/or supplier of Goods which are manufactured by a third party, the Goods are sold only with such warranties as may be given by the third-party manufacturer. For the avoidance of doubt, the third-party manufacturer’s standard warranty shall apply as specified in the manufacturer’s standard warranty documentation.
5.4 The Buyer is responsible for installation and use of the Goods in accordance with the third-party manufacturer’s instructions as required to ensure that the warranty remains valid and applicable.
5.5 Unless expressly stated otherwise, delivery dates set out in a Quotation or otherwise agreed in writing between the parties are calculated from the date of the purchase order as an estimate only. alphaXRT will use commercially reasonable efforts to ensure that the delivery date is as stated or agreed and will not be liable for any loss arising from a change in delivery date or late delivery.
5.6 alphaXRT may deliver the Goods in instalments with each instalment to be invoiced on delivery and alphaXRT’s delivery records will be prima facie proof of delivery of the Goods.
5.7 A restocking fee will be charged if the Buyer is unable to accept delivery or cancels a purchase order: this will be a reasonable fee for the storage, restocking, insurance and redelivery of the Goods plus a 15% administration fee.
6.1 alphaXRT will provide the Services as specified in the Quotation to the Buyer, with due care and skill and in a timely fashion.
6.2 Where alphaXRT is to provide Services or any part of the Services at the Buyer’s site, the Buyer must provide proper and safe access to the site where the Services are to be provided, ensure that the site is safe and ready for the provision of the Services and comply with any health and safety laws and regulations as applicable. If the premises are not ready or safe for provision of the Services, then alphaXRT may delay or suspend the Service until the premises are deemed, in alphaXRT’s sole opinion, to be ready and safe.
6.3 The Buyer indemnifies alphaXRT against any loss or damage caused to alphaXRT or its servants or agents or property whilst attending the Buyer’s site, except to the extent that the loss or damage was caused or contributed to by any act or omission of alphaXRT.
Unless otherwise agreed in writing, risk of damage to and loss of the Goods passes to the Buyer on delivery of Goods to the site. The Buyer must keep the Goods insured for their full replacement value on usual terms against all risks usually insured for goods of that kind until legal and beneficial ownership has passed to the Buyer.
Notwithstanding delivery to the Buyer, legal and beneficial ownership in the Goods shall remain with alphaXRT until the price is paid for the Goods and any other Goods sold by alphaXRT to the Buyer, and until any ancillary and/or local government impositions payable in respect of the Goods are paid.
Until then, the Buyer holds the Goods as alphaXRT’s fiduciary agent and bailee. The Buyer must:
alphaXRT shall be entitled to enter upon the site at which the Goods are stored at any time without notice and without prejudice to any of its other rights and remedies, to repossess any Goods not paid for in full.
9.1 Australia: The Competition and Consumer Act 2010 [Cth] and similar State legislation establish consumer guarantees and warranties which cannot be excluded, including those regarding warranties of title under clause 5.2. Nothing in this Agreement operates to exclude those guarantees or warranties, but all other warranties, express or implied, are excluded.
9.2: New Zealand: Consumer Guarantees Act 1993. Nothing in these terms and conditions is intended to have the effect of contracting out of the provisions of the Consumer Guarantees Act 1993 [“CGA”], except to the extent permitted by the CGA and all provisions of these terms and conditions shall be read as modified to the extent necessary to give effect to that intention. The Buyer agrees that if it is purchasing the Goods for the purposes of a Business, the CGA shall not apply. The Buyer shall not, in relation to the supply by the Buyer of the Goods, give or make any undertaking, assertion or representation in relation to the Goods without the prior approval in writing of alphaXRT and the Buyer shall indemnify alphaXRT against any liability or cost incurred by alphaXRT as a result of the breach by the Buyer of this provision. The Buyer shall, in relation to the supply of any of the Goods by alphaXRT, contract out of the provisions of the CGA to the extent that the Buyer is entitled to do so under the CGA and shall indemnify alphaXRT against any liability incurred by alphaXRT under the CGA as a result of any breach by the Buyer of this provision.
10.1 Any claim which the Buyer may have against alphaXRT shall be deemed to be waived unless the Buyer gives written notice thereof to alphaXRT within 7 days after the date of delivery and affords to alphaXRT a reasonable opportunity to investigate the claim. Except on respect of Goods which are for personal, domestic or household use and the warranties of title in clause 5.2, alphaXRT’s liability for any breach of consumer guarantees or warranties shall be limited at alphaXRT’s option either to replacement or repair of the Goods or re-supply of the Services, or repayment of the amount paid by the Buyer. alphaXRT’s liability shall never exceed the quoted value of the Goods or Services. Furthermore, alphaXRT shall never be liable for any consequential, special or contingent damages or costs which may be claimed to have resulted from the use of the Goods or from alphaXRT’s failure to perform any obligation further to a Quotation.
10.2. Other statutes. The Sale of Goods Act 1908 and other statutes may imply warranties or conditions or impose obligations upon alphaXRT which cannot by law [or which can only to a limited extent by law] be excluded or modified. In respect of any such implied warranties, conditions or terms implied imposed on alphaXRT, alphaXRT’s liability, shall, where it is allowed, be excluded or if not able to be excluded, only apply to the minimum extent required by the relevant statute.
11.1 If alphaXRT, by reason of an event of Force Majeure, is wholly or partially unable to perform its obligations, alphaXRT shall give the Buyer prompt written notice of the event of Force Majeure, with reasonably full particulars of the event, whereupon the obligations of alphaXRT to the extent that they are affected by the event of Force Majeure shall be suspended for so long as the event renders alphaXRT unable to so perform its obligations.
11.2 alphaXRT shall take all reasonable steps to remove the Force Majeure condition and resume performance of its obligations under this agreement.
11.3 If an event of Force Majeure continues for a period longer than 3 months, alphaXRT may by written notice terminate the agreement.
11.4 “Force Majeure” means any act of God, strike, lock out or other industrial disturbance, act of public enemy, war, declared or not, armed conflicts or similar events, blockade, public riot, quarantine restriction, freight embargo, lightning, earthquake, fire, storm, flood, explosion, governmental restraint, or any other event whether of the kind specifically named above or otherwise which is not reasonably within the control of the party claiming suspension.
Any technical information, knowledge or processing methods at any time transmitted either orally or in writing by alphaXRT to the Buyer shall remain the property of alphaXRT and shall be considered absolutely confidential by the Buyer who shall not use them for any purpose nor sell transfer or divulge them in any manner to anyone without the prior written consent of alphaXRT. The Buyer warrants that the use by the Buyer of any designs or instructions supplied by the Seller will not infringe the patents, trademarks, designs or copyright (”intellectual property”) of any other person and the Buyer agrees to indemnify alphaXRT against any Claim relating to or arising from the infringement of any intellectual property of any other person.
If there is any inconsistency between these Terms and Conditions and any order submitted by the Buyer (whether in writing, verbally or electronically) or any other arrangement between the parties, these terms and conditions prevail unless otherwise agreed in writing by the parties. alphaXRT’s Quotation [if applicable], these Terms and Conditions and any other written documents expressly incorporated by reference in alphaXRT’s Quotation constitutes the entire agreement between the Buyer and alphaXRT regarding the subject matter of the agreement to purchase Goods and/or Services and may not be modified except in writing by a duly authorized employee of the Buyer or alphaXRT.
14.1 The Buyer must not transfer or assign its right under any contract arising out of alphaXRT’s acceptance of a Buyer’s Purchase Order to anyone else without alphaXRT’s prior consent in writing. In the event that it is agreed that a factoring or finance company may be used for the assignment of the Buyer’s debt, all existing liabilities between the Buyer and alphaXRT will remain valid, including any warranties and service agreements.
14.2 alphaXRT may assign, transfer or novate any of its rights or obligations under the Agreement to a third party without the prior written consent of the Buyer.
14.3 alphaXRT may license or subcontract all or any part of its rights or obligations under the Agreement.
In the event that any provision hereof is found invalid or unenforceable pursuant to judicial decree or decision, the remainder of this agreement shall remain valid and enforceable according to its terms.
If alphaXRT exercises or fails to exercise any right or remedy available to it, this shall not prejudice alphaXRT’s rights in exercising that or any other right or remedy. Waiver of any term or condition must be specified in writing and signed by alphaXRT.
Any contract arising out of alphaXRT’s acceptance of a Buyer’s Purchase Order shall be construed and operate as a contract in conformity with the laws of New Zealand and the New Zealand courts shall have the exclusive jurisdiction in respect of all claims and actions arising out of any such contract, provided that alphaXRT shall be entitled to commence an action arising out of or in respect of the contract in any other jurisdiction.