In these Terms of Trade (“Terms”) we have used “we”, “us” and “our” to refer to Insight Medical Limited and “you” and “your” to refer to our customer. By agreeing to acquire Goods (and any associated services) from us you agree to these Terms to the exclusion of your terms (if any).  For the purposes of these Terms, “Goods” means all goods to be provided by us to you and includes any associated services that we may provide to you.

1.      ORDERING

1.1     You must place an order for Goods in writing to us.  Each order we receive from you is an offer subject to acceptance by us.  Orders shall be deemed accepted by us when accepted in writing, or, in the absence of written acceptance, upon Delivery of the Goods.  Once an order has been accepted by us, it is final and binding on you and may not be changed or cancelled by you without our prior written consent.

1.2     We may cancel or amend any order for Goods which in our opinion is impractical, uneconomic or unable to supply. If an order is cancelled you will have no claim against us for any loss or damage (including consequential loss or damage) arising from the cancellation.

1.3     Quantities to be delivered will reflect the packaged multiples of product as received by us. We reserve the right to amend ordered quantities to best reflect these multiples. A schedule of our pack quantities will be available within our price list.

2.1     All Goods will be delivered to you by us to the address stipulated in the order unless agreed otherwise in writing by both parties.

2.2     We will have the sole and absolute discretion as to the choice of carrier and method of carriage of the Goods. Should you nominate your own carrier or specific non-standard delivery instructions, then all costs of delivery including insurance will be at your sole cost.

2.3     For each order that is less than $1,500 (exclusive of GST), we will charge a delivery fee.

2.4     Any time quoted for delivery is an estimate only.  Such time is approximate only and is not binding on us or deemed to be of the essence. We will not be liable for any loss or damage (including consequential loss or damage) arising from any failure to deliver or delay in delivery for any reason.  

2.5     We may charge you storage and transportation expenses if you fail or refuse to take or accept delivery or indicate to us that you will fail to do so.

2.6     We reserve the right to Deliver Goods by instalments.

2.7     If we are out of stock of any Goods ordered by you, we may Deliver such Goods at a later date than the rest of the ordered Goods.

2.8     Any delay in Delivery will not entitle you to cancel any order or refuse to accept Delivery or to make payment.

2.9     For the purpose of these Terms, "Delivery" means, the despatch of the Goods from our premises to you, unless we have agreed for you to collect the Goods from our premises, in which case, delivery shall mean the collection of Goods by you or one of your employees, contractors or agents from our premises, and "Deliver" and "Delivered" shall have a corresponding meaning. If you indicate to us that you will fail or refuse to take or accept Delivery, then the Goods are deemed to have been Delivered when we are willing to Deliver them.

2.10   You must indemnify us against any claim, loss or damage suffered by us or as a result of us becoming liable to any third party (directly or indirectly) as a result of our employees, contractors or agents entering any premises for the purposes of Delivering the Goods.

3.      TITLE AND RISK

3.1     We shall retain itle of the Goods we supply (and you will be bailee only in respect of the Goods) until they have been paid for in full and you have performed all your other obligations under these Terms. Until title to the Goods has passed to you, you will store and maintain any Delivered Goods in good condition and ensure the Goods are identified in such a way that they are clearly our property.

3.2     Until you have paid us in full for the Goods, you may not sell (unless such sale is in the ordinary course of your business), dispose of or charge the Goods and you must hold or deal with the Goods for and on behalf of us. If the Goods are sold, in the ordinary course of your business, prior to title passing to you, the proceeds of that sale will be our property and held by you in a separate bank account on trust for and on behalf of us to the extent of all amounts owing by you to us.

3.3     Risk in all Goods passes to you when the Goods are Delivered. You shall insure the Goods for their full price, and shall not sell, dispose or part with possession of them or do anything else inconsistent with our ownership of the Goods (other than a sale of the Goods in the ordinary course of your business), from Delivery until title in them passes to you.

4.       PRICE

4.1     All prices are exclusive of GST and are in New Zealand dollars.

4.2     All prices are subject to change without notice and, unless we agree otherwise in writing, the amount you will be charged will be the price as at the date of Delivery.

4.3     If we provide a quotation to you, it is based on information available to us at that time and we may charge you more than the amount quoted if our costs (including without limitation the cost of labour, materials, transport, tax, exchange rates or other costs) or the specifications change.

5.       PAYMENT

5.1     We will issue an invoice with respect to the Goods. If you have an approved credit facility with us, payment must be made by the 20th of the month following the date of the invoice, or as otherwise agreed in writing by us. If you do not have an approved credit facility with us you must pay for the goods prior to delivery. We are under no obligation to supply Goods to you on credit.

5.2     All payments must be made by cheque or direct credit to our nominated bank account as stated on the invoice.

5.3     We may at our sole discretion require immediate payment of all amounts outstanding (whether or not then due and payable) where

a) your credit worthiness, in our opinion, is unsatisfactory or becomes unsatisfactory

b) your failure to comply with any one or more of these obligations under these terms

c) if one or more insolvency events occur.

5.4     If you have not paid us in full by the due date with any monies owing to us, we may at our sole discretion, without giving you prior notice, terminate these terms (or the applicable underlying contract) and seek to recover the Goods, without prejudice to any claims for damages against you.

5.5     We may charge you bona fide reasonable costs including the cost of any bank fees for dishonoured cheques, collection agency, solicitor or other legal or accounting costs incurred in the collection of monies overdue (on a full indemnity basis).

5.6     Without limiting any of our other rights, any monies owing under these terms which are not paid when due will bear interest at 2% per month from the date such monies first become due to us.

5.7     We may notify you at any time that we are going to stop supplying Goods to you on credit. This shall be without prejudice to your obligation to pay amounts owing.

5.8     All payments shall be made in full without set-off or deduction. Receipt of a cheque, bill of exchange, or other negotiable instrument will not constitute payment and you remain liable for payment until payment is received by us. We may apportion payments to outstanding accounts as we see fit.

6.       DEFAULT

6.1     You will be in default if:

a.    you fail to pay an amount due under these Terms by the due date for payment; or

b.    you commit a breach of any of your other obligations under these Terms; or

c.    you become insolvent, are wound up, have a receiver appointed, enter into any composition or arrangement with your creditors, do any act which would render you liable to be placed in liquidation or have a receiver appointed over your property, commit an act of bankruptcy, cease to be of full legal capacity, or die;

d.    Goods that we have retained title to are at risk; or

e.    an event or a series of events (whether related or not) occurs which, in our opinion, may cause a material adverse change in your ability to meet your obligations to us.

6.2     If you are in default then we may, at our option, do any one or more of the following:

a.    charge you default interest at 2% per month on any late payments calculated on a daily basis from the due date for payment until the date payment is received;

b.    require you to remedy the default in the manner and within a period that we tell you;

c.    require you to pay to us all amounts you owe us immediately;

d.    suspend or terminate your account with us;

e.    enforce security interests created by these Terms;

f.     exercise any rights that we have under these Terms or that are available to us at law.

6.3     We may suspend or terminate your account with us at any time in our sole discretion. If your account is terminated, you must immediately pay us any amount you owe us. Termination will not affect any of our rights that have arisen before termination.

7      PERSONAL PROPERTY SECURITIES ACT 1999 (“PPSA”)

7.1     Clause 3.1 creates a security interest in Goods we supply to you.

7.2     You hereby grant a security interest to us in all Goods as security for payment of the purchase price for those Goods and for any other amounts or obligations owing by you to us from time to time. You shall not grant any other security interest or any lien over Goods that we have a security interest in.

7.3     At our request you shall promptly sign any documents and do anything else required by us to ensure our security interest constitutes a first ranking perfected security interest in the Goods.

7.4     We may at any time enter your premises and properties to uplift Goods that we have a security interest in and you indemnify us against any costs, losses, damages or expenses arising as a result of us taking any action pursuant to this clause.

7.5     If Goods that we have a security interest in are processed, included or dealt with in any way causing them to become accessions, processed or commingled Goods, our security interest will continue in the whole in which they are included. You shall not grant any other security interest or any lien in either the Goods or in the whole.

7.6     You waive any rights you may have under Part 9 of the PPSA, including, without limitation, any rights you may have under sections 114(1)(a), 116, 120(2), 121, 125, 126, 127, 129, 131, 133, and 134 of the PPSA. You further agree that where we have rights in addition to those under Part 9 of the PPSA, those rights will continue to apply.

7.7     You waive your right to receive a copy of any verification statement (as that term is defined in the PPSA). 

7.8     You shall give us prior written notice of any proposed change of your name or address.

7.9     Any terms used in this clause which are defined in the PPSA have the meanings given to them under or in the context of the PPSA.

8.       WARRANTIES

8.1.   You warrant and agree that you are not requiring the Goods for the pupose of:

a) consuming them in the course of a process of production or manufacturer; or

b) repairing or treating other Goods or

c) personal, domestic, household use or consumption, and therefore you are not a consumer as defined by the CGA.

8.2     Subject to clause 9, we warrant to repair, replace or credit (at our sole discretion) all Goods and their components manufactured by us which we, in our sole discretion, determine are defective in materials or workmanship under normal use and service. The warranty will not apply if:

i) the Goods have not been used or stored in accordance with manufacturer instructions, or

ii) the Goods have been subject to any alteration or repair, or

iii) you fail to notify us of a claim under this clause within 14 days of the defect becoming apparent and to return the Goods to us on our request to do so, or

iv) the indicated shelf life of the Goods has expired.

8.3     The CGA, the FTA and other statutes may impose warranties, conditions or obligations upon us which cannot by law (or which can only to a limited extent by law) be excluded. Other than as expressly provided for in these Terms, we exclude all such imposed warranties, conditions or obligations to the extent permitted by law and exclude any warranty, condition or obligation imposed or implied under common law, equity or otherwise.

8.4     Where you acquire Goods from us in trade in terms of sections 2 and 43 of the CGA, both parties acknowledge and agree that: the Goods are both supplied and acquired in trade; the parties agree to contract out of sections 9 (misleading and deceptive conduct generally), 12A (unsubstantiated representations), 13 (false or misleading representations) and 14(1) (false representations and other misleading conduct in relation to land) of the FTA; and all warranties, conditions and other terms implied by the CGA or the sections of the FTA referenced above are excluded from these Terms to the fullest extent permitted by law.

9.       LIMITATION OF LIABILITY

9.1     Except as expressly otherwise provided by clause 8 or in the case of our negligence or wilful default, we shall not be liable for any loss or damage or liability of any kind whatsoever (including consequential loss or lost profit or lost revenues) whether suffered or incurred by you or another person and whether in contract, or tort, or otherwise and whether such loss or damage arises directly or indirectly from Goods or services provided by us to you.

9.2     To the extent that we are liable for any reason for any loss suffered or liability incurred by you arising from any breach of these Terms or for any other reason, such liability is limited to the amount of the price of the Goods concerned, or the replacement of the Goods concerned.

9.3     Subject to clause 8, you indemnify us from every liability, loss, damage, cost or expense directly or indirectly occurred or suffered or contributed to by any of the following:

a) you or your employees’ failure or any third party associated with your failure to:

    i) adequately provide or display safety markings or safety information on or with the goods

    ii) comply with any law about the goods or their use (including for example, their sale, marketing, labelling or marking)

    iii) take any reasonable precaution to bring to the attention of any potential users of the Goods any dangers associated with the Goods.

    iv) take any reasonable precaution to detect any matters in relation to which we may become liable in any way (for example under the CGA).      

    v) provide correct information to us vi) use and maintain the goods in accordance with the manufacturers or our instructions and/or any other written materials supplied with the Goods relating to the storage, installation, operation and servicing of the Goods, and       

    vii) use of Goods under conditions for which they were not designed.

b) you making any statement about the Goods (for example about their performance or characteristics) without the company’s approval.

c) your or any third parties use or operation of the Goods.

d) any negligence or breach of duty by yourself or any party or any breach by the customer or any third party of these terms.

e) any workmanship or procedure performed by you or a third party, and f)  any misuse, neglect or alteration by you, your agents, your employees, or any third party of the Goods.

9.4      The limitations of liability in this clause 9 shall survive any termination or expiration of these terms.

10.     SUITABILITY OF GOODS

10.1    You must ensure that:

a. all goods are handled and used in line with the manufactuer's guidelines.

b. any safety features of the Goods are not interfered with, modified or disabled.

c. all Goods are used under appropriate supervision and/or with appropriate training

d.    any of your employees, contractors or agents using or handling the Goods are instructed to comply with sub-clauses a, b and c above; and e. you inform us if there is any suspected design or manufacturing fault that may affect the safety of the Goods.

10.2   You acknowledge that:

c.    you are responsible for ensuring that all and any instructions, recommended uses, applications and methods are followed and any cautions and/or warnings observed;

d.    any information, manuals or guidance on specifications, descriptions, measurements and any other information relating to the Goods contained in advertisements, catalogues, price lists, illustrations or any other material provided by us to you, while given in good faith, shall be regarded as approximate and as a general guide only;

e.    in respect of all purchases of Goods from us, you are relying on your own judgement as to the nature, quality and condition of the Goods and their suitability for any use or purpose required by you; and

f.     where any recommendation or advice has been given by or on behalf us, this is a recommendation only we will not have any liability in respect of the implementation of the recommendation.

11.     CLAIMS & RETURNS

11.1   Subject to clause 8, we are not obligated to accept in any case the return of goods for credit.

11.2   All claims for faulty, incorrect or defective goods must be submitted in writing to us within 21 days of receipt of delivery of the Goods to you. If a claim is not submitted you will be deemed to have accepted the Goods.

11.3   If Goods are returned by you, or if you make a claim in writing to us in relation to Goods or any associated services provided, we may, in our discretion, repair or replace the Goods or re-perform the services, or refund the price of those Goods to you, provided that:

a.    the Goods must be returned or the claim must be made in writing to us within twenty one (21) days of Delivery;

b.    you provide a written statement on why the Goods are being returned;

c.    you must supply the date and number of any invoice relating to the Goods; and

d.    we must be given a reasonable opportunity to inspect the Goods.

12.     INTELLECTUAL PROPERTY

12.1   Nothing in these Terms shall be construed as granting you any intellectual property rights. The sale of any Goods shall not, unless expressly agreed otherwise, give you the right to use, sell, disseminate or duplicate any of our trademarks, copyrights, designs or any other intellectual property rights. For the purposes of this clause and clause 15, "Intellectual Property" means all intellectual property rights including, without limitation, copyright, patent and design rights, drawings, documents, data, ideas, procedures, calculations and all other statutory and common law rights and interests.

13.     PRIVACY OF INFORMATION

13.1   You authorize us:

a.    to collect, retain and use information about you from any person for the purpose of assessing your creditworthiness;

b.    to disclose information about you:

i.    to any person who guarantees, or who provides insurance, or who provides any other credit support, in relation to your obligations to us;

ii.   to such persons as may be necessary or desirable to enable us to exercise any power or enforce or attempt to enforce any of our rights, remedies and powers under these Terms.

13.2   You consent to us, or any financier or credit-rating agency, making enquiries of and obtaining any information about your financial standing and credit worthiness.

14. CONFIDENTIALITY

14.1   You shall at all times treat as confidential all non-public information and material received from us and shall not publish, release, or disclose the same without our prior written consent. For clarity, confidential information includes any new Intellectual Property and prices. 

15.     JURISDICTION

15.1   These Terms are governed by the laws of New Zealand. You may take legal action against us only in a New Zealand Court however we are entitled to commence any action arising out of or in respect of these Terms in any other Court.

16.     DISPUTES

16.1   Any claim or dispute arising under these Terms shall be determined by arbitration under the Arbitration Act 1996 if the parties are unable to resolve such dispute themselves within one (1) month of the dispute arising. However, nothing in this clause prevents either party from taking immediate steps to seek any equitable relief before the New Zealand Courts.

17.     FORCE MAJEURE

17.1   We shall not be liable for delay or failure to perform our obligations under these Terms if the cause of delay or failure is beyond our reasonable control.

18.     GENERAL

18.1   These Terms replace any earlier representations, warranties, understandings and agreements (whether oral or written), and together with your Customer Credit Application constitute the entire agreement between us and you relating to their subject matter.

18.2   Any notice may be given by phone, in person, posted, or sent by facsimile or email to you or where you are a company, to any of your directors.

18.3   You must pay our costs (including legal costs, as between solicitor and client) of and incidental to the enforcement or attempted enforcement of our rights, remedies and powers under these Terms.

18.4   You shall not transfer or assign your rights, powers or obligations under these Terms without our prior written consent.

18.5   If you have entered into these Terms as the trustee of a trust (and you have no right or interest in any assets of the trust except in your capacity as trustee of the trust), your liability under these Terms shall be limited to, and shall be satisfied out of, the assets from time to time under your control as a trustee of the trust. This clause does not limit any liability you have to us as a personal guarantor.

18.6   No failure or delay by us in insisting upon the strict performance of these Terms or exercising any right under these Terms will operate as a waiver of those matters.

18.7   We may change these Terms at any time. Any change applies from when we notify you of that change.