ALBANY ELECTRONIC COMPONENTS LTD

TERMS AND CONDITIONS OF SALE

In these terms and conditions:

(a) “Vendor” means ALBANY ELECTRONIC COMPONENTS LIMITED and its agents, successors and assigns.

(b) “Buyer” means the person, firm, company or entity buying the Goods from the Vendor.

(c) “Goods” means all Goods the subject matter of any contract for purchase between the Vendor and Buyer, including where the context permits a resulting product into which the Goods are so incorporated, manufactured or commingled that their identity is lost in the resulting product.

1. ORDERS

1.1 All orders made by the Buyer can only be withdrawn by the Buyer (after notice of that order has been received by the Vendor) with the Vendor's express written consent, which the Vendor may grant or withhold in its sole and absolute discretion and without having to give any reasons. All orders are subject to and are not binding until their acceptance by the Vendor and, in the case of Goods not held in stock by the Vendor, confirmation by the Vendor. Notwithstanding any arrangement granting credit to the Buyer, the Vendor reserves the right to accept or decline acceptance of any order in its absolute discretion.

1.2 Where Goods are sold by description or by reference to a sample, the Vendor will use its best endeavours to supply Goods complying with such description or sample, however, the Vendor shall not be liable for any variation in the Goods.

2. DELIVERY

2.1 The Buyer acknowledges that the Goods shall be deemed to be delivered to the Buyer at the time the Goods leave the Vendor’s premises notwithstanding that the Goods may be in transit or in the possession of the Vendor’s delivery agent. The Buyer shall pay all delivery and freight costs, charges, taxes or levies.

2.2 All claims for errors or short delivery shall be made within 5 days of delivery. The Vendor will use its best endeavours to deliver Goods in the timeframes stipulated by the Buyer in its order, however, the Vendor shall not be liable for any loss to the Buyer caused by any delay and the Buyer shall not be entitled to cancel the order.

3. PRICE

3.1 The Buyer shall pay the price indicated on the invoice issued by the Vendor. All prices quoted are net prices excluding GST and do not include other taxes or levies, freight or insurance charges or currency exchange fluctuations which, if applicable, will be an extra charge.

3.2 All published prices are indications only. In some cases estimates may be made and actual prices may vary slightly. Prices are therefore subject to alteration without prior notice and offers to purchase are only accepted for delivery at the prices applying at the time of delivery.

4. PAYMENT

4.1 All accounts are:

4.1.1 Prepaid by purchaser; or
4.1.2 Credit approved accounts (Credit Account); or
4.1.3 As agreed between the Vendor and the Buyer in writing.

4.2 Until credit is approved by the Vendor all Goods will be delivered upon receipt of payment in full.

4.3 The Buyer shall pay all accounts by the Payment Date specified on the invoice issued by the Vendor provided that the Vendor reserves the right to require prepayment or other payment terms. In the absence of a Payment Date specified on the invoice, the Payment Date for all Goods supplied pursuant to a Credit Account shall be made by the 20th day of the month following the month of the date of the Vendor’s invoice.

4.4 In the event that payment is not received by the Payment Date default interest may be charged by the Vendor, at a rate equivalent to 5 percent per annum above the overdraft interest rate charged by the Vendor’s bankers and calculated on a daily basis on all moneys outstanding for the period during which the payment has been overdue until all moneys including default interest have been paid in full. All payments shall be applied first in payment of default interest (if any).

4.5 The Vendor may at its discretion apply any payments it receives from the Buyer in and towards the satisfaction of any indebtedness of the Buyer to the Vendor and it shall not be bound by any conditions or qualifications that the Buyer may make in relation to such payments.

5. DEFAULT

5.1 In addition to any other provision hereof, the Buyer shall be in Default if any of the following events shall occur:

5.1.1. If the Buyer fails to pay any amount due by the Payment Date.

5.1.2 If the Buyer fails to meet any obligation to the Vendor.

5.1.3. If the Buyer becomes insolvent.

5.1.4. If a Receiver, Liquidator or Official Manager is appointed in respect of the Buyer.

5.1.5. If a compromise arrangement with the Buyer’s creditors is made or likely to be made.

5.1.6. If the Buyer ceases or threatens to cease carrying on business.

5.1.7. If the ownership or effective control of the Buyer is transferred, or the nature of the Buyer’s business is materially altered.

5.1.8 If the Buyer does or permits any act or thing likely to prejudice or put at risk the Goods or the Vendor’s rights or interest (including its security interest) in the Goods.

5.2 For the purposes of clause 5.1 hereof, a reference to the Buyer shall include the Guarantor(s).

5.3 If an event of Default shall occur (notwithstanding that the Vendor may have waived some previous default by the Buyer) then:

5.3.1 All sums owing by the Buyer to the Vendor shall become immediately due and payable.

5.3.2 The Vendor may, without prior notice, enter the premises of the Buyer or any other premises that the Buyer is authorised to enter and retake possession of the Goods and sell them without being liable in any way to the Buyer. Furthermore, the Buyer shall indemnify the Vendor for all costs (including legal costs), claims by third parties or whatsoever in retaking possession and selling the Goods.

5.3.3 The Vendor may appoint a Receiver pursuant to the Receiverships Act 1993 in respect of the Goods (including their proceeds) supplied to the Buyer and any such Receiver may take possession of the Goods and sell them and otherwise exercise all rights and powers conferred on a receiver by law.

5.3.4 The Vendor may by notice in writing suspend or terminate the Credit Account.

5.4 Notwithstanding the foregoing, the Vendor shall be entitled at any time in its sole discretion and without notice to the Buyer to suspend or terminate any credit account with the Buyer and the Buyer shall forthwith deliver the Goods to the Vendor at its place of business or at such other place as shall be agreed upon.

6. RETENTION OF TITLE

6.1 All Goods shall remain the property of the Vendor as legal and equitable owner pending cleared payment in full of all moneys due and owing in respect of those Goods owed by the Buyer to the Vendor. The Buyer acknowledges that the Buyer is in possession of the Goods as bailee for the Vendor pending payment in full of all moneys due to the Vendor for those Goods. Unless the Vendor directs otherwise, the Buyer may dispose of any Goods to third parties by way of bona fide sale at full market value in its normal course of trading.

6.2 The Vendor may at any time enter the premises of the Buyer or any other premises that the Buyer is authorised to enter and retake possession of any Goods in respect of which the Buyer has not paid the Vendor in full for the purchase price for those Goods, for the purpose of inspecting, maintaining, testing the Goods or perfecting the Vendor’s security interest in the Goods without in any way being liable to the Buyer or any person or company claiming through the Buyer.

7. RISK AND INSURANCE

7.1 The risk of any loss or damage to or deterioration of the Goods due to any cause whatsoever including damage or loss in transit shall be borne by the Buyer as from the time when the Goods leave the Vendor’s premises provided that if the Goods remain on the Vendor’s premises or with any carrier due to the failure of the Buyer to accept the Goods or at the Buyer’s request then all such risk shall be borne by the Buyer as from the date of the Buyer’s failure or request as the case may be.

7.2. The Buyer shall be obliged to insure and maintain the Goods from the time of risk passing to the Buyer and, pending payment in full, such insurance shall be held in the name of the Vendor and the Buyer for their respective interests.

8. RETURNS

8.1 The Vendor will not accept Goods for return unless agreed in writing by the Vendor prior to return of Goods. In the event of the Vendor at its discretion agreeing to accept returns, the following conditions shall apply:

8.1.1 All Goods must be in the same good order and condition as when they left the Vendor’s premises.

8.1.2 All Goods must be returned together with all original documentation within ten (10) days of the Vendor notifying the Buyer of its willingness to accept Goods for return.

8.1.3 All Goods returned must be delivered pre-paid to the Vendor’s premises.

8.2 If all or any of the above conditions are not fulfilled the Vendor reserves the right at its option to refuse the return of Goods or alternatively to charge a restocking fee of 15% of the GST exclusive purchase price.

9. DEFECTIVE GOODS

9.1 All claims for defective Goods must be in writing and delivered to the Vendor together with the Goods in question for inspection by the Vendor within thirty (30) days of receipt of the Goods. The claim must quote the relevant invoice number. Any claims not made within thirty (30) days of receipt will be deemed as waived by the Buyer, although at the sole discretion of the Vendor, the warranty period may be extended following the submission of appropriate test reports from sources acceptable to the Vendor.

9.2 The Vendor will not be responsible for any shortages or damage suffered to Goods while in transit. Claims for breakages damages and shortages during transit must be made to the carrier.

9.3 The Vendor will not be liable for any claim as a result of damage, loss or wear resulting from misuse, fair wear and tear (including ageing), failure to follow the Vendor’s and/or manufacturer’s instructions for correct use of the Goods, or alteration or repair of the Goods without the Vendor’s approval.

9.4 The Vendor shall, at its option, repair or replace any defective goods provided that the goods have not been subjected to improper use and that the claim is within the provisions of the warranty applicable to the respective products.

9.5 The Buyer acknowledges that the Buyer has purchased the Goods for the purpose of a business and that the provisions of the Consumer Guarantees Act 1993 do not apply.

9.6 To the maximum extent permitted by law, the Vendor will not be liable for any loss of profit, business opportunity, goodwill, customers, or market share, or for any indirect loss or consequential damages arising directly or indirectly from the sale of Goods by the Vendor to the Buyer. The Buyer acknowledges that in no case will the Vendor’s liability exceed the purchase price of the particular Goods giving rise to any liability.

9.7 The Vendor is not liable for, and the Buyer shall indemnify the Vendor in respect of any loss or damage arising from the processing, further manufacture or other use or resale of the goods by the Buyer, its customers or agents whether the Goods are used alone or in conjunction with any other material.

10. COSTS
10.1 The Buyer will upon demand pay all the Vendor’s expenses and legal costs (on a solicitor/agent/client basis) in or in connection with the registration of a financing statement or financing change statement relating to the security interest created by these Terms and Conditions or obtaining an order under section 167 of the PPSA or the collection of overdue moneys or the exercise, enforcement or preservation of any right or interest under these terms and conditions or any other contract with the Buyer.

11. WAIVER

11.1 These Terms and Conditions remain in force notwithstanding any neglect, forbearance or delay in enforcement. The Vendor shall not be deemed to have waived any condition unless such waiver shall be in writing under signature of its Directors and such waiver shall apply only to the particular transaction to which it refers.

12. PERSONAL PROPERTY SECURITIES ACT 1999 (PPSA)

12.1 The Buyer grants the Vendor a security interest in favour of the Vendor over all Goods supplied by the Vendor in respect of which the Buyer has not paid the Vendor in full for the purchase price for those Goods, and which secures payment by the Buyer of the unpaid portion of the purchase price for those Goods.

12.2 The Buyer will provide such information, do such acts and execute such further documents as in the opinion of the Vendor may be necessary or desirable to enable the Vendor to perfect under the PPSA the security interest created by these Terms and Conditions as a first priority interest (including, if necessary, as a purchase money security interest) or with such other priority as the Vendor may agree in writing.

12.3 The Buyer irrevocably appoints the Vendor to be the Buyer’s attorney to do anything which the Buyer agrees to do under these Terms and Conditions and anything which the attorney thinks desirable to protect the Vendor’s interest under these Terms and Conditions and the Buyer ratifies anything done by an attorney under this clause.

12.4 The Buyer agrees sections 114(1)(a), 116, 117(1)(c), 119, 120(2), 121, 125 to 127, 129, 131 to 133 of the PPSA shall not apply to these Terms and Conditions or the security created hereunder.

12.5 The Buyer waives the right to receive a copy of the verification statement confirming registration of a financing statement or a financing change statement relating to the security interest created by these Terms and Conditions.

12.6 The Buyer must not change its name or any other material identifying characteristics of either the Buyer or the Goods without first notifying the Vendor of the new name or new characteristics (as the case may be) not less than 7 days before the change takes effect.

12.7 The Buyer must not create, or allow or permit the creation of, a security interest (as defined in the PPSA) in any of the Goods in favour of any person other than the Seller without first obtaining the Seller’s written consent, nor may the Buyer allow or permit the creation of a lien over any of the Goods.

13. INTELLECTUAL PROPERTY

13.1 The Vendor disclaims any warranty against infringement with respect to the goods sold pursuant to these terms and conditions and the packaging relating to such goods. The Vendor is not liable with respect to any actual or alleged infringement of any trademark, copyright, trade secret or similar proprietary rights.

14. FORCE MAJEURE

14.1 Despite anything to the contrary in these terms and conditions, if the Vendor’s performance of any of these terms or conditions is prevented or delayed by any act or event beyond the Vendor’s reasonable control, then the Vendor will be excused from such performance for so long as the cause preventing or delaying performance persists, provided however that the Vendor will use all reasonable endeavours to avoid or remove such cause of non-performance or delay and resumes performance whenever such cause is avoided or removed.

15. TECHNICAL ADVICE

Any technical advice offered or given in connection with the use of any goods is an accommodation to the Buyer without charge. It is the responsibility of the Buyer to satisfy itself as to the suitability and use of any goods purchased and the seller is not liable or responsible in any way for the content or use of any advice given.

16. NOTICES

16.1 Any notice or other communication under these terms and conditions must be in writing and may be made either by personal delivery or facsimile to the recipient at their address or facsimile number. Each notice must be marked for the attention of the person or office holder (if any) from time to time designated for the purpose of receiving such notices or communications by the recipient. The initial address, facsimile number and relevant person or office holder of the Buyer is as set out in the application for credit account forming part of these terms and conditions (which, in the case of the address, will be the Buyer’s street address). The initial address, facsimile number and relevant person or office holder of the Vendor is as follows:

16.1.1 Street Address: 5 Dene Court Lane, Cuthill, Auckland, 0632, New Zealand.
Attention: Bruce Beale
Facsimile: 64 9 4447138

16.2 No communication is effective until it is received. A communication will, however, be deemed to have been received by the recipient.

16.2.1 in the case of personal delivery, when delivered; and

16.2.2 in the case of a facsimile, on the working day on which it is despatched or, if despatched after 5.00pm or on a day which is not a working day, on the next working day after the date of despatch.