contact:
Willie Wai
Chief Executive Officer
Managing Director


address:
P.O.Box 12 656 Penrose
Auckland
New Zealand


tel. 021528 889

international dialing:
tel. 064 21528 889

email:
info@primax.co.nz
TERMS AND CONDITIONS
1.Application of Terms and Conditions
 1.1These terms and conditions of trade apply to and govern all proposals and quotations submitted by, all orders placed with, and all contracts entered into by (“the company”) whereby goods and/or delivered (“Supply” or “Supplied) by the company (“Agreement”).
 1.2 Any Agreement may be varied only with the company's prior written consent and on the basis that the customer fully indemnifies the company for any loss, damage, cost or expense which the company may suffer of incur as a consequence of its agreeing to such variation and all such variations shall be subject to these terms and conditions of trade.
 1.3To the extent that any conflict exists between the these terms and conditions of trade and any other documentation or correspondence forming part of any Agreement, these terms and conditions of trade shall be paramount and prevail.
 1.4Any order or offer made by any customer shall not be binding on the company until accepted by the company in writing or in such manner as the company in its sole discretion determines.
 1.5A proposal or quotation submitted by the company may at any time prior to acceptance of an offer by the company in respect to the supply of goods and/or services be varied or withdrawn by the company.
 1.6To the extent that there is any inconsistency existing between any terms and conditions appearing in a customer's order and these terms and conditions of trade then these terms and conditions shall only apply and the acceptance by a customer of the supply by the company of goods and/or services the subject of such an order shall constitute an acceptance by the customer of the supply by the company of such goods and/or services solely on these terms and conditions of trade.
 1.7These terms and conditions of trade replace in their entirety any previous terms and conditions of trade published, issued or used by the company or any division or subsidiary of the company.
TERMS AND CONDITIONS OF TRADE
2.Period of the Quotation or Proposal
 2.1A quotation or proposal submitted by the company shall remain valid for 14 days from the date of such quotation or proposal unless otherwise agreed in writing.
  
3.Subject and Limit of the Offer
 3.1Following its submission of a quotation or proposal or its acceptance of an order the company shall not be required to comply with any additional standards, specifications, rules or other requirements whatsoever, whether proposed by the customer or otherwise, and, if any such additional standards, specifications, rules or other requirements are proposed to apply to such quotation or proposal or order, the company reserves the right to decline to proceed with the quotation or fill the order, vary the quotation or proposal or order, or adjust the price of the goods and/or services the subject of the quotation or tender or order, in its sole discretion.
 3.2Unless otherwise expressly stated in a quotation or proposal, the price of goods does not include the cost of delivery and/or installation and/or testing of the goods.
 3.3Any technical assistance provided by the company shall be at the customer's expense provided that if any Agreement is one for or includes installation or testing any technical assistance provided by the company pursuant to such installation or testing shall be at the company's expense.
 3.4Unless expressly stated in a quotation of proposal the price of goods and/or services does not incluse training of the customer's employees, servants or agents by the company.
 3.5These terms and conditions of trade replace in their entirety any previous terms and conditions of trade published, issued or used by the company or any division or subsidiary of the company.
   
4.Price
 4.1Except where the company provides a quotation, the price of the goods and/or services shall be the standard prices or rates charged by the company prevailing at the time of supply of those goods and/or services to the customer.
 4.2Unless otherwise agreed in writing, the prices for the supply of good and /or services do not include Goods and Services Tax (if any).
 4.3Any additions or increases in the cost of the supply of goods and/or services as a result of any additions or increase in charges, taxes or costs associated with manufacture or supply of goods and/or services by the company, including without limitation increases due to variations in exchange rates, the cost of materials or labour and/or the cost of conforming with any relevant legislation, court orders, regulation or by-laws, between the date of the company's relevant quotation or proposal or, where there is no such quotation or proposal, from the date of the company's acceptance of the customer's order, as the case may be, and the date of supply of the relevant goods and/or services shall be borne by the customer.
 4.4The prices quoted by the customer shall only apply t the specific goods and/or services specified in such quotation or proposal or accepted order. Any additional or other goods or services outside the scope of the quoted work or otherwise supplied at the request of the customer shall be charged to the customer at the company's standard prices or rates prevailing at the time of supply.
 4.5Where the Agreement includes services then, notwithstanding any other provision of there terms and conditions or any other Agreement, the company shall be entitled to impose or levy a minimum charge as it considers appropriate for inspection and assessment of defects in the customer's equipment which shall be payable by the customer irrespective of whether or not the company carries out any repair work on the relevant item(s) of equipment.
   
5.Payment
 5.1The customer shall be invoiced at the time of completion of services or delivery of goods or as started in the company's quotation or proposal or as the company in its sole discretion otherwise considers appropriate.
 5.2Time for payment is of the essence of the Agreement.
 5.3All amounts shall be due and payable upon the date of invoice, or as the company in its sole discretion otherwise considers appropriate.
 5.4The customer shall pay interest to the company on all overdue moneys from the date of invoice (“the interest date”) calculated at monthly rests at the same rate as the overdraft rate charged on the company's current account with the company's bank from time to time on the interest date. The charging of interest shall not constitute the granting of credit or an option to pay interest instead of the overdue amount.
 5.5The customer shall not (nor shall it be entitled to) set off or deduct from any amount payable to the company under any Agreement, any amounts payable by the company to the customer under these terms and conditions of trade or any other Agreement.
 5.6If the customer does not pay any amount when due, the company may, without prejudice to any of its other rights, treat the Agreement as repudiated by the customer or may, until the customer makes payment in full, postpone or stop supply of any goods and/or services and/or exercise a lien over any property of the customer the subject of the Agreement or any other contract with the customer, without incurring any liability to the customer. If the company holds goods or any other property of the customer under this clause they will be held for the customer's account and at the customer's risk. The customer will reimburse the company for any costs incurred by the company in exercising the remedies under this clause.
 5.7 Notwithstanding any other provisions of these terms and conditions of trade, payment of all amounts owing by the customer to the company shall become due and payable immediately upon the customer (being a natural person) committing any act of bankruptcy or the customer (being a company) committing any act which entitles any person to issue a statutory demand, to apply to liquidate the customer or to appoint a receiver or a receiver and manager of the customer or any of its assets, or a liquidator of the customer is appointed.
   
6.Delivery
 6.1Where the company agrees to deliver goods to an address nominated in writing by the customer (“the nominated address”), the company shall deliver the goods to the nominated address, otherwise, the place of delivery shall be the company's premises and notification to the customer of completion of the work, where the Agreement includes services for repairs, or the goods are available for dispatch, where the Agreement is for the supply of goods, shall constitute delivery to the customer.
 6.2Where goods are to be delivered to a nominated address, the company shall be deemed to have delivered the goods in accordance with the contract if it obtains a receipt or signed delivery docket for the goods from any person at that address.
 6.3If a nominated address is unattended or if delivery cannot otherwise be effected or the goods cannot be dispatched due to any act, matter or thing beyond the control of the company, the company in its sole discretion may store the goods at the customer's risk and expense or take such other steps as it considers appropriate.
 6.4The company reserves the right to refuse to supply goods and/or services under an Agreement and/or to exercise a lien over any property of the customer in its possession if a customer is in default of any of its payment obligations under any one or more Agreements.
 6.5The company reserves the right to choose or vary the means, route and procedure of delivery, transport and handling of goods.
 6.6The company may supply goods and/or services in installments and these terms and conditions of trade shall apply to each supply of goods and/or services by installments as if each installment constituted supply under a separate Agreement and in particular, the customer shall pay the company for each installment of goods and/or services so supplied irrespective of any failure or delay in the supply of any other installment of goods and/or services.
 6.7The risk of loss or damage to goods shall pass to the customer at the time of delivery or when the customer is notified that the goods are available for dispatch, as the case may be.
 6.8The company shall make all reasonable efforts to meet any date for supply of goods and/or services agreed between the company and the customer, but time for supply shall not be the essence of the Agreement. Where a delay in supply is caused by any act, matter or thing beyond the control of the company, including without limitation a variation requested by the customer, the time for supply shall be extended by a period agreed between the company and the customer or, failing such agreement, by a reasonable period. In no event shall the company incur any liability due to any failure on its part to supply goods and/or services by an agreed date.
 6.9The company may in its discretion supply goods and/or services prior to any agreed date for such supply (including any extensions of that date).
   
7.Claims
 7.1No claim for goods lost or damaged in transit or short or incorrect quantities or types of goods delivered may be made unless such claim is made by the customer in writing to the company within 7 days of delivery or installation of the goods. The company's only liability for any such loss or damage shall be, in its sole discretion, to replace or repair the goods or pay for such goods to be replaced or repaired.
 7.2 No claim in relation to defective goods or services may be made unless the defect occurs during the relevant warranty period and such claim is made by the customer in writing to the company within 7 days of the defect being discovered by the customer.
 7.3Goods that conform to the Agreement may only be returned for credit upon the written agreement of the company. In all cases the original invoice or delivery docket must be quoted and return freight must be prepaid by the customer.
 7.4Non-standard goods manufactured by the company or goods specifically ordered by the company for the customer will not be accepted for credit.
 7.5The company reserves the right to charge a restocking fee of up to 20% of the price of the goods accepted for credit.
 7.6 All goods returned for credit must be in their original pack and in a completely resaleable condition.
   
8.Warranty
 8.1Subject to clause 8.2 the company warrants that goods or services supplied by it will at delivery or on completion of the services and for a period of 3 months thereafter under proper use, in the case of goods, be free from any defects in construction or operation arising solely from faulty design, manufacture or workmanship on the part of the company and in the case of services, be free from defects in design, performance, workmanship and materials used in providing such services.
 8.2The warranty referred to in clause 8.1 does not apply to goods where:
  
8.2.1 the defect arises from materials supplied by the customer or drawings provided by the customer;
8.2.2the defect arises from ordinary wear and tear, neglect or misuse by the customer, accident, lack of care, incorrect installation by a party other than the company including connecting goods to an incorrect power supply, insufficient maintenance or improper use of goods;
8.2.3 the defect arises from any act, matter or thing beyond the control of the company;
8.2.4the customer has in any way modified, serviced or repaired the goods without the company's prior written consent;
8.2.5the customer has not complied with any written or oral instructions from the company concerning the operation and maintenance of the goods; or
8.2.6the customer is in default in the observance or performance of any other provisions of the Agreement to which such goods relate.
 8.3Those goods or parts and components of goods not manufactured by the company which form part of the goods or are used in providing the services shall be warranted by the company only to be the extent that and on the same terms as they are warranted by the supplier or manufacturer of them and the company is able to pass on the benefit of such warranty to the customer. The period of such warranty shall not in any event, however, exceed the period set out in clause 8.1.
 8.4Where the customer acquires goods under an Agreement for the purpose of re-supply (including by way of hire or rental) to a consumer within the meaning of the Consumer Guarantees Act 1993 (“the CGA”), the customer shall ensure that at or before the time such goods are acquired by the consumer it has provided to the consumer a written notice of the current period, if any, during which the company's warranty in respect of such goods, as set out in the relevant provisions of this clause 8, is available to the consumer.
 8.5Subject to clauses 8.1,8.2 and 8.3, the company shall;
  
8.5.1where the Agreement is for the supply of goods, at its option repair or replace defective goods at its own expense, but the company shall have no liability for the cost of the delivery to the company and/or removal of the defective goods.
8.5.2Where the Agreement includes services, re-provide defective services at its own expense.
8.5.3Where the Agreement includes services for repairs, replace any defective parts supplied by the company during the course of such repair without charge for parts or labour, and
8.5.4The company will effect any further repair work found to be necessary to satisfy the customer's original instructions/complaints without charge for labour but any additional parts required will be charged at the company's then prevailing prices.
   
9.Consumer Guarantees Act 1993
 9.1The customer acknowledges that the customer is acquiring, or holding itself out as acquiring, goods and/or services from the company for the purpose of a business and the customer agrees that:
  
9.1.1the conditions, warranties and guarantees set out in the CGA accordingly shall not apply to and are hereby excluded from the acquisition of those goods and/or services by the customer; and
9.1.1the customer may not claim any of the remedies set out in the CGA from the company.
 9.2The customer agrees that if the customer acquires any goods which are ordinarily acquired for personal, domestic or household use, for the purpose of supplying the goods in trade, or incorporating the goods into any product which is ordinarily acquired for personal, domestic or houshold use (“the Consumer Product”) the customer will:
  
9.2.1if supplying the goods or Consumer Product for re-supply in trade, procure that the customer's written terms and conditions for such re-supply require that the customer's client and each person in the distribution chain include in their written supply agreements, when the acquirer acquires, or holds itself out as acquiring the goods or Consumer Product for the purposes of a business, an acknowledgement in writing that the acquirer is acquiring the goods or the Consumer Product for business purposes and to exclude the provisions of the CGA from any such acquisition.
9.2.1If supplying the goods or the Consumer Product directly to an end user or consumer (as that term is defined in the CGA) who is acquiring, or holding itself out as acquiring the goods or the Consumer Product for the purposes of a business, the customer will supply the goods or the Consumer Product pursuant to written terms and conditions which acknowledge that the goods or the Consumer Product are being acquired for business purposes and exclude the provisions of the CGA from that supply.
 9.3The customer shall indemnify the company for any loss, costs, damages or expenses suffered or incurred by the company directly or indirectly as a result of any failure by the customer or the customer's clients to contract out of the provisions of the CGA, where the end user or consumer acquire, or held itself out as acquiring, the goods or Consumer Product for business purposes.
   
10.Limitation of Liability
 10.1Subject only to clauses 6, 8 and 10.4 and notwithstanding any other provision of this or any Agreement or otherwise, if any liability on the part of the company arises to or in favour of the customer (whether in contract, tort or otherwise) for any loss, damage, harm or injury arising out of or in any way connected with the supply of or failure in the provision of or the purported supply of goods and/or services by the company, the company's liability for all such loss, damage, harm or injury in all and any circumstances shall by limited in aggregate to the payment by the company of a sum not exceeding the price of the goods and/or services payable to the company pursuant to the relevant Agreement.
 10.2Any customer of goods or services from the company agrees t release, hold harmless or indemnify the company from and against all liabilities, claims, damages, losses, costs and expenses of whatsoever nature and howsoever occurring including without limitation loss of market, loss of profit, loss of use, loss of production or for any financial or economic loss including indirect or consequential loss or damage which may be suffered by the customer or by any third party arising out of or in any way connected with the supply of the goods or the performance of services by the company, by reason of breach of these terms and conditions of trade, or of statutory duty or by reason of tort (including byt not limited to negligence).
 10.3Except as otherwise expressly provided in these conditions and subject to clause 10.4, all statements, representations, provisions, conditions, promises, undertakings, covenants and other provisions, express or implied (and whether implied by law or otherwise) relating to any quotations or proposals submitted by the company, orders accepted by the customer, goods (whether as to their quality or merchantability, fitness for any purpose, correspondence, with any description or sample or otherwise) and/or services or their supply, being provisions which might otherwise form part of these terms and conditions of trade or any Agreement or be collateral to form part of any agreement that is collateral to these terms and conditions of trade or any Agreement, are hereby excluded in their entirety and are of no effect whatsoever.
 10.4These terms and conditions of trade do not, and no provisions of these terms and conditions of trade will or purports to exclude, restrict or modify or have the effect of excluding, restricting or modifying the application in relation to the supply of goods and/or services of any provision of the Fair Trading Act 1986 or the exercise of any right conferred by any such provision or any liability of the company for breach of a condition or warranty implied by any such provision.
 10.5If the supply of goods and/or services under any Agreement constitutes a supply of goods and/or services to a consumer, as defined in the CGA:
  
10.5.1nothing in that Agreement or these terms and conditions of trade shall be construed as excluding, restricting or modifying any express or implied condition, warranty, right or remedy conferred by the CGA on the customer; and
10.5.1the liability of the company in respect of any breach of a condition or warranty implied by the CGA (other than an implied condition as to good title, an implied warranty that the customer will enjoy quiet possession and an implied warranty that goods are unencumbered together with any other non excludable implied conditions or warranties contained on the CGA), shall be limited at the company's sole discretion to:
 
(a)in the case of goods:
 (i) the replacement of the goods or the supply of equivalent goods;
 (ii)the repair of the goods;
 (iii)the payment of the cost of replacing the goods or of acquiring equivalent goods; or
 (iv)the payment of the cost of having the goods repaired;
(b)in the case of services:
 (i)the supply of the services again by the company; or
 (ii) the payment of the cost of having the services supplied again.
 10.6To the full extent permitted by law:
  
10.6.1the customer acknowledges that it relies on its own skill and judgement in relation to goods and/or services supplied to it by the company;
10.6.2the company shall be under no liability for any unsuitability for any purpose of the goods irrespective of any knowledge which it may possess as to the purpose for which the goods were required by the customer unless that purpose has been specifically notified to the company in writing prior to the formation of the relevant Agreement; and
10.6.3all liability of the company shall cease at the end of the warranty period as stated in clause 8.1 and no claim shall be made against the company after that date.
   
11.Passing of Title
 11.1Notwithstanding delivery of the goods to the customer or that any of them become part of or attached to other goods, title to goods the subject of an Agreement remains with the company as the sole and absolute property of the company as legal and equitable owner, and the company reserves the right to dispose of such goods, until such time as the customer's total indebtedness to the company is discharged.
 11.2If such goods become part of other goods then the customer acknowledges that the title in such other goods immediately passes to the company.
 11.3In order to remove any doubt regarding the ownership of such other goods the customer agrees that title in the other goods passes to the company at the beginning of the operation or event by which the goods become part of such other goods.
 11.4 Until full payment of the customer's indebtedness to the company is made to the company the customer shall store the goods and, where appropriate, such other goods in a way that clearly manifests the company's title in them and shall keep separate records of any sales of such goods and, where appropriate, such other goods.
 11.5The customer acknowledges that until its total indebtedness to the company is discharged, it holds the goods and, where appropriate, such other goods as bailee of the company and that a fiduciary relationship exists between them.
 11.6The customer shall not purport to charge, assign, sell, lease or part with possession of the goods and, where appropriate, such other goods prior to discharging its total indebtedness to the company without the consent of the company.
 11.7If the customer sells the goods or any of them and, where appropriate, such other goods prior to discharging its total indebtedness to the company then the customer undertakes such sales as agent and fiduciary for the company and the customer shall:
  
11.7.1disclose the agency relationship to its customer and will be deemed to have assigned to the company the benefit of any claim against such customers; and
11.7.2hold the proceeds of such sales on trust that the proceeds of such sales are not mingled with other money and shall promptly account fully to the company for the proceeds of such sales.
 11.8Until title to any goods subject of an Agreement passes to the customer or if any event as specified in clause 14.1 occurs, the company may without notice and without prejudice to any of its other rights and remedies enter upon the premises on which the customer holds such goods and recover, take possession and/or re-sell such goods or any of them notwithstanding that they have become part of or attached to other goods. The customer shall ensure that the company shall at all times have access to such premises and hereby irrevocably authorizes the company, its servants and agents to enter (forcibly, if necessary) upon such premises or to exercise any other rights of entry of the customer for that purpose and to do all things necessary (including opening up and removing from any assembled computer or peripheral unit any goods that have become part thereof or attached thereto) in order to take possession of such goods without being liable in any way to the customer (including for consequential loss or damage to any other goods of which the goods have become part or to which they have become attached.)
 11.9The Customer shall indemnify the company upon demand for all costs and expenses in effecting any repossession under clause 11.8 and for all claims by any third party for any losses resulting from the company effecting entry or repossession.
   
12.Drawings, Documentation and Information
 12.1Any drawings or other documents submitted and any information supplied by the company to the customer remains the property of the company and constitutes confidential information of the company (to the extent that it is not in the public domain) and the customer shall keep all such confidential information confidential and shall not use such drawings, documents and information for any purpose other than that stipulated by the company nor provide the same to third parties.
 12.2Where any drawings or other documents or information supplied by the company with or as a part of a quotation or proposal are not incorporated into an Agreement between the company and the party to which such quotation or proposal was submitted they shall be returned to the company within 7 days of expiry of the quotation or proposal or otherwise as reasonably required by the company.
   
13.Test and Performance
 13.1The company shall at its own expense carry out its standard tests on the goods together with any test required by any government or regulatory authorities.
 13.2Any additional tests required by the customer shall be at the customer's expense.
 13.3If the results of the tests are outside any performance limits specified in the Agreement the company shall be given a reasonable time within which to rectify performance.
 13.4The company does not guarantee the performance limits stated in the quotation or proposal unless such limits are expressly guaranteed by the company in writing.
   
14.Termination
 14.1The company may terminate any Agreement without notice if the customer:
  
14.1.1is in breach of any term of the Agreement and fails to remedy the breach within 14 days notice in writing by the company specifying the breach and requiring the customer to remedy it;
14.1.2has failed or refused to take delivery of goods the subject to the Agreement and such failure or refusal continues for a period of 14 days after the company has notified the customer that the goods are ready for delivery or dispatch, as the case may be, and/or the customer has failed or refused to allow the company to supply services the subject of the Agreement and such failure or refusal continues for a period of 14 days after the company has notified the customer that it is ready, willing and able to supply such services; or
14.1.3is declared bankrupt, resolves to go into liquidation or has a petition for bankruptcy or an application for the appointment of a liquidator presented against it or enters into a scheme of arrangement with its creditors or if any liquidator, provisional liquidator, administrator, receiver, receiver and manager or official manager is appointed in respect of the customer or if anything analogous occurs in respect of the customer.
 14.2In the event of such termination the company shall, after taking into account payments made by the customer to the company, be entitled to be paid by the customer for work done and expenditure made under the Agreement up to and including the date of termination and any direct and indirect loss suffered by the company included without limitation the company's loss of profit on the Agreement and the legal costs of the company (on a full indemnity basis) incurred in relation to the termination and any prior breach and in exercising any rights and remedies as a consequence of the termination and any prior breach.
 14.3Termination of the Agreement pursuant to this clause shall be without prejudice to the rights of the company accruing up to the date of termination.
15.Intellectual Property
 15.1The company's offer, proposal or quotation and any subsequent contract may contain information for the customer's secret and confidential use based on the company's own design and development work and that of the company's contractors. The customer is hereby bound not to disclose this information to any third party without the company's consent in writing.
 15.2The supply of goods or services to the customer does not constitute a transfer of any intellectual property rights in the goods or services or any part thereof. The customer shall not do anything inconsistent with or in infringement of such intellectual property rights.
 15.3The company does not warrant that the supply by it and the use by the customer of the goods or services does not and will not infringe the intellectual property rights of any third party whether such rights take the forms of letters patent, registered designs, copyright, trade mark rights, or any other similar right.
 15.4Where the company manufactures the goods or any part thereof or provides the services to the customer's design and specifications, the customer agrees to indemnify and keep indemnified the company and its related corporations against all actions, claims, loss, damages, costs and fines that the company and/or its related corporations may incur or suffer as a result of a claim by a third party that the manufacturer and sale by the company of the goods or any part thereof or the provision of the services infringes any intellectual property rights of such third party.
   
16.Suspension of the company's Obligations
 16.1Notwithstanding any other provision of these terms and conditions of trade if the customer breaches a term of any Agreement the company shall not be bound to perform its obligations under that Agreement until the breach is remedied by the customer.
   
17.Severance
 17.1If any provision or part of any provision of these terms and conditions of trade is unenforceable, such unenforceability shall not affect any other part of such provision or any other provision of these terms and conditions of trade.
   
18.Waiver
 18.1Any waiver or purported or implied waiver by the company of strict compliance with these terms and conditions of trade shall not be deemed a waiver unless it is in writing and signed by an authorised officer of the company and shall not prejudice the rights of the company in respect of any breach of these terms and conditions of trade to which such waiver does not specifically relate.
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