TERMS OF TRADE
STANDARD TERMS AND CONDITIONS OF CONTRACT
Please read these Terms very carefully. All sales by DigMax Equipment Limited NZBN: 9429047216778 to Buyer are subject to these Terms.
1. DEFINITIONS
“DigMax” refers to Digmax Equipment Limited NZBN: 9429047216778;
“DigMax address” shall mean its email address digmax@digmax.com “Buyer” shall mean the company, partnership, unincorporated business or other entity identified on the face of the relevant Purchase Order/Digmax invoice;
“Buyer address” shall mean either the Buyer’s email address or Buyer’s mobile;
“Contract” means a contract between DigMax and Buyer for the purchase of the relevant Products;
“Order confirmation” shall mean the written confirmation sent by DigMax to Buyer at the Buyer’s address (whether by email or txt) that a Purchase order is accepted;
“Products” shall mean the earthmoving buckets and attachments manufactured by DigMax; “Purchase order” means an order for Products submitted by Buyer to Digmax at its DigMax address;
“Software” means the software (if any) by which the Products operate; “Terms” means these Terms of Trade.
2. GENERAL TERMS
All sales by DigMax of Products shall be subject to these Terms (as amended from time to time). These Terms apply upon Order confirmation by DigMax of the Buyer's Purchase order and constitute a legally binding contract between DigMax and the Buyer.
In the event of any conflict between these Terms and the Buyer's Purchase order or any other document these Terms prevail. AII other conditions, warranties, descriptions and representations whether express or implied by law, trade, custom or otherwise are expressly excluded. No agent or representative of Digmax is authorised to make any representations not expressly confirmed by Digmax in writing and Digmax is in no way bound by any such representations nor shall any such representations be capable of being taken to form part of a contract with Digmax collateral to this contract.
DigMax reserves the right to amend these Terms at any time by giving written notice of such amendment to Buyer. The effective date of such amendments shall be five (5) working days from the date of the notice. Submission of any Purchase order by Buyer after such effective date shall be deemed an acceptance of the amendments.
3. PURCHASE ORDER AND ORDER CONFIRMATION
For each purchase of the Products from DigMax a Purchase order must be completed and submitted to DigMax. Each such Purchase order shall specify the required Products. The submission of a Purchase order to DigMax constitutes Buyer’s offer to purchase the Products specified therein. Such offer may be accepted or rejected by Digmax by notification to Buyer’s Address.
DigMax’s acceptance of a Buyer’s Purchase order will be by means of an Order confirmation whereupon a contract shall be constituted and DigMax will invoice Buyer.
4. PRICE AND PAYMENT Unless expressly state otherwise by DigMax the applicable prices of the Products shall be those specified in the quotation provided by DigMax on or prior to the placement of the relevant Purchase order.
Prices are GST exclusive. In addition to the price for the Product, the Buyer must pay DigMax an amount equal to any GST Digmax must pay for any supply by DigMax. The Buyer must pay GST, without deduction or set off of any other amounts at the same time and on the same basis as the Buyer pays the price.
Prices are exclusive of Freight charges. In addition to the price for the Product, the Buyer must pay DigMax an amount equal to any freight cost quoted and included on the DigMax invoice.
The Buyer shall provide all relevant details requested by DigMax, and in doing so agrees that in the course of any enquiries or investigations that may be required by the DigMax to validate, or otherwise, the Buyer's credit or supply suitability, either now or in the future, the Buyer authorises any person to provide information of their experiences with the Buyer, and also authorises DigMax to provide without further permission such information to others seeking further similar validation. Commercial credit information may be accessed via a credit reporting agency.
All DigMax accounts are for payment by the 20th of month following date of issue by DigMax of an invoice to the Buyer unless otherwise arranged in writing. DigMax may, at its option, charge interest on overdue amounts calculated daily at the maximum overdraft rate charged by DigMax’s bankers from the day payment was due through to the day it is received in cleared funds. If the Buyer defaults in payment of any moneys due to DigMax, it may stop work on all of the Buyer's orders and hold all the Buyer's orders until payment is made. The Buyer shall also be liable to pay all expenses and legal costs of DigMax (calculated between solicitor and own client) in relation to obtaining or seeking to obtain remedy of any default in payment by the Buyer. DigMax may also secure the moneys due by a General Security Agreement on the Auckland District Law Society standard form under the Personal Property Securities Act 1999 over Buyer’s personal property and the Buyer irrevocably authorises and appoints DigMax as their attorney to do this. Accounts not paid may result in information and defaults being reported to a credit reporting agency.
5. DELIVERY OF PRODUCTS
DigMax will confirm all delivery dates by email or txt to the Buyer. Delivery is deemed completed upon delivery of the Products to the Buyer or as directed by Buyer. DigMax shall not be liable to the Buyer for any loss or damage (including consequential loss or damage) arising from late delivery or failure to deliver as a result of any strike, difficulty in acquiring suitable materials, shortage of labour, delays in transit, legislative, governmental or other prohibitions or restrictions, fire, flood, hostilities or other causes whatsoever (whether similar in nature or not to the foregoing) beyond Digmax’s control. DigMax is not obliged to remedy such circumstances.
The Buyer's right to reject non-conforming Product(s) shall be limited so as to be effective only if rejection is notified by the Buyer in writing to Digmax within 7 days of receipt of Products.
6. TITLE AND RISK IN PRODUCT
All risk of loss or damage to the Products supplied by DigMax shall be borne by the Buyer from the time of delivery of the Products by DigMax to the Buyer. DigMax shall be under no obligation to insure the Products.
7. INSPECTIONS AND LIMITED WARRANTY
DigMax warrants that the Products delivered to the Buyer shall be free of defects in material and workmanship under normal use at the time of delivery by DigMax to Buyer (“Quality Defects”). For the avoidance of doubt the term “Quality Defects” shall exclude defects caused by improper use, damage that occurred after delivery, or deterioration of Products due to the passage of time.
8. LIMITATION OF LIABILITY AND INDEMNITY
Except for the limited Quality Defects warranty of DigMax to the extent permitted by law, this contract expressly excludes every warranty, condition, liability or representation concerning the Product(s). If any condition or warranty is implied into the contract then to the extent permitted by law the liability of DigMax shall be excluded for any such non-excludable condition or warranty, in contract or in tort for any loss or damage or injury arising directly or indirectly from the sale or supply of the product. DigMax’s liability is limited to the invoice value of the product and at DigMax’s option, it may elect to replace Product.
9. BUYER INDEMNITY
The Buyer indemnifies DigMax from every liability, loss, damage, cost or expense directly or indirectly incurred by DigMax caused by or contributed to by any of the following:
(a) the Buyer's failure to comply with any law relating to the Product or the Product’s use; (b) the Buyer’s failure to take every precaution to bring to the attention of any potential users of the Product’s any dangers associated therewith; (c) the Buyer’s making statements about the Product’s performance or characteristics not expressly authorised by DigMax; or (d) the Buyer’s negligence or breach of duty or any breach by the Buyer of these Terms.
The Buyer agrees to indemnify and hold harmless DigMax against any claim, loss or expense which DigMax suffers or incurs through any work required to be done in accordance with any design or instruction furnished by the Buyer including an infringement of a patent, trademark, copyright, registered design or common law right.
lf the Buyer commits an act of bankruptcy, or being a company, does any act which would render it liable to be wound up or has a receiver, administrator, liquidator or controller appointed over its property, or ceases to carry on its business, or if DigMax considers that the creditworthiness of the Buyer has become unsatisfactory, or if the Buyer does not comply with any one or more of its obligations under these Terms DigMax may at its option immediately suspend or terminate the contract and all costs incurred by Digmax up to the date of such suspension or termination or as a result of such suspension or termination shall be payable by the Buyer upon demand.
10. INTELLECTUAL PROPETY
Buyer hereby recognises that the Products may be manufactured by DigMax under licence and/or operated using licenced Software and that in all such cases the Buyer will comply with DigMax’s licencee obligations.
All work undertaken or supplied by DigMax in fulfilling the contract shall remain the property of DigMax, which shall be entitled to the exclusive use thereof. The Buyer must not use any information obtained from Digmax to the advantage of the Buyer or the detriment of DigMax. By buying the Products, the Buyer does not gain any licence or right to any of the intellectual property such as Patents, registered designs, trademarks or copyright or confidential information relating to the Products. DigMax is not obliged to disclose the methods or techniques used in production of the Products and operation of the Software.11. WAIVER OF RIGHTS
All the rights, powers, exemptions and remedies of DigMax shall remain in full force notwithstanding any neglect, forbearance or delay in their enforcement. DigMax shall not be deemed to waive any right, power, exemption or remedy unless such waiver shall be in writing under the signature of a director of DigMax and any such waiver, unless the contrary shall be expressly stated, shall apply to and operate only in the particular transaction, dealing or matter. The exercise of a right by DigMax does not prevent any further exercise of that right or of any other right.
12. ASSIGNMENT
The Buyer may not assign, encumber, declare a trust over or otherwise create an interest in its rights under its contract with DigMax except with DigMax’s express prior written consent.
13. GOVERNING LAW AND JURISDICTION
These Terms are governed by the law in force in New Zealand. Each party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in New Zealand and any court that may hear appeals from any of those courts, for any proceedings in connection with these Terms and the contract between the parties, and waives any right it might have to claim that those courts are an inconvenient forum.
14. INTERPRETATION
These Terms bind and ensure to the benefit of DigMax and its successors and assigns. The provisions of these Terms shall be given a large and liberal interpretation in favour of DigMax.
Any provision of these Terms which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make the Terms enforceable, unless this would materially change the intended effect of the Terms.
15. MEDIATION/ARBITRATION
Any dispute arising out of or relating to these Terms and the contract may be referred to mediation, a non-binding dispute resolution process in which an independent mediator facilitates negotiation between the parties.
Mediation may be initiated by either party writing to the other party and identifying the dispute which is being suggested for mediation. The other party will either agree to proceed with mediation or agree to attend a preliminary meeting with the mediator to discuss whether mediation would be helpful in the circumstances. The parties will agree on a suitable person to act as mediator or will ask the Arbitrators' and Mediators' Institute of New Zealand Inc to appoint a mediator. The mediation will be in accordance with the Mediation Protocol of the Arbitrators' and Mediators' Institute of New Zealand Inc. The mediation shall be terminated by –
(a) The signing of a settlement agreement by the parties; or (b) Notice to the parties by the mediator, after consultation with the parties, to the effect that further efforts at mediation are no longer justified; or (c) Notice by one or more of the parties to the mediator to the effect that further efforts at mediation are no longer justified; or (d) The expiry of sixty (60) working days from the mediator's appointment, unless the parties expressly consent to an extension of this period.
If no mediation is agreed to or if the mediation should be terminated as provided in (b), (c) or (d), any dispute or difference arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in New Zealand in accordance with New Zealand law and the current Arbitration Protocol of the Arbitrators' and Mediators' Institute of New Zealand Inc. The arbitration shall be by one arbitrator to be agreed upon by the parties and if they should fail to agree within twenty-one (21) days, then to be appointed by the President of the Arbitrators' and Mediators' Institute of New Zealand Inc.
Please read these Terms very carefully. All sales by DigMax Equipment Limited NZBN: 9429047216778 to Buyer are subject to these Terms.
1. DEFINITIONS
“DigMax” refers to Digmax Equipment Limited NZBN: 9429047216778;
“DigMax address” shall mean its email address digmax@digmax.com “Buyer” shall mean the company, partnership, unincorporated business or other entity identified on the face of the relevant Purchase Order/Digmax invoice;
“Buyer address” shall mean either the Buyer’s email address or Buyer’s mobile;
“Contract” means a contract between DigMax and Buyer for the purchase of the relevant Products;
“Order confirmation” shall mean the written confirmation sent by DigMax to Buyer at the Buyer’s address (whether by email or txt) that a Purchase order is accepted;
“Products” shall mean the earthmoving buckets and attachments manufactured by DigMax; “Purchase order” means an order for Products submitted by Buyer to Digmax at its DigMax address;
“Software” means the software (if any) by which the Products operate; “Terms” means these Terms of Trade.
2. GENERAL TERMS
All sales by DigMax of Products shall be subject to these Terms (as amended from time to time). These Terms apply upon Order confirmation by DigMax of the Buyer's Purchase order and constitute a legally binding contract between DigMax and the Buyer.
In the event of any conflict between these Terms and the Buyer's Purchase order or any other document these Terms prevail. AII other conditions, warranties, descriptions and representations whether express or implied by law, trade, custom or otherwise are expressly excluded. No agent or representative of Digmax is authorised to make any representations not expressly confirmed by Digmax in writing and Digmax is in no way bound by any such representations nor shall any such representations be capable of being taken to form part of a contract with Digmax collateral to this contract.
DigMax reserves the right to amend these Terms at any time by giving written notice of such amendment to Buyer. The effective date of such amendments shall be five (5) working days from the date of the notice. Submission of any Purchase order by Buyer after such effective date shall be deemed an acceptance of the amendments.
3. PURCHASE ORDER AND ORDER CONFIRMATION
For each purchase of the Products from DigMax a Purchase order must be completed and submitted to DigMax. Each such Purchase order shall specify the required Products. The submission of a Purchase order to DigMax constitutes Buyer’s offer to purchase the Products specified therein. Such offer may be accepted or rejected by Digmax by notification to Buyer’s Address.
DigMax’s acceptance of a Buyer’s Purchase order will be by means of an Order confirmation whereupon a contract shall be constituted and DigMax will invoice Buyer.
4. PRICE AND PAYMENT Unless expressly state otherwise by DigMax the applicable prices of the Products shall be those specified in the quotation provided by DigMax on or prior to the placement of the relevant Purchase order.
Prices are GST exclusive. In addition to the price for the Product, the Buyer must pay DigMax an amount equal to any GST Digmax must pay for any supply by DigMax. The Buyer must pay GST, without deduction or set off of any other amounts at the same time and on the same basis as the Buyer pays the price.
Prices are exclusive of Freight charges. In addition to the price for the Product, the Buyer must pay DigMax an amount equal to any freight cost quoted and included on the DigMax invoice.
The Buyer shall provide all relevant details requested by DigMax, and in doing so agrees that in the course of any enquiries or investigations that may be required by the DigMax to validate, or otherwise, the Buyer's credit or supply suitability, either now or in the future, the Buyer authorises any person to provide information of their experiences with the Buyer, and also authorises DigMax to provide without further permission such information to others seeking further similar validation. Commercial credit information may be accessed via a credit reporting agency.
All DigMax accounts are for payment by the 20th of month following date of issue by DigMax of an invoice to the Buyer unless otherwise arranged in writing. DigMax may, at its option, charge interest on overdue amounts calculated daily at the maximum overdraft rate charged by DigMax’s bankers from the day payment was due through to the day it is received in cleared funds. If the Buyer defaults in payment of any moneys due to DigMax, it may stop work on all of the Buyer's orders and hold all the Buyer's orders until payment is made. The Buyer shall also be liable to pay all expenses and legal costs of DigMax (calculated between solicitor and own client) in relation to obtaining or seeking to obtain remedy of any default in payment by the Buyer. DigMax may also secure the moneys due by a General Security Agreement on the Auckland District Law Society standard form under the Personal Property Securities Act 1999 over Buyer’s personal property and the Buyer irrevocably authorises and appoints DigMax as their attorney to do this. Accounts not paid may result in information and defaults being reported to a credit reporting agency.
5. DELIVERY OF PRODUCTS
DigMax will confirm all delivery dates by email or txt to the Buyer. Delivery is deemed completed upon delivery of the Products to the Buyer or as directed by Buyer. DigMax shall not be liable to the Buyer for any loss or damage (including consequential loss or damage) arising from late delivery or failure to deliver as a result of any strike, difficulty in acquiring suitable materials, shortage of labour, delays in transit, legislative, governmental or other prohibitions or restrictions, fire, flood, hostilities or other causes whatsoever (whether similar in nature or not to the foregoing) beyond Digmax’s control. DigMax is not obliged to remedy such circumstances.
The Buyer's right to reject non-conforming Product(s) shall be limited so as to be effective only if rejection is notified by the Buyer in writing to Digmax within 7 days of receipt of Products.
6. TITLE AND RISK IN PRODUCT
All risk of loss or damage to the Products supplied by DigMax shall be borne by the Buyer from the time of delivery of the Products by DigMax to the Buyer. DigMax shall be under no obligation to insure the Products.
7. INSPECTIONS AND LIMITED WARRANTY
DigMax warrants that the Products delivered to the Buyer shall be free of defects in material and workmanship under normal use at the time of delivery by DigMax to Buyer (“Quality Defects”). For the avoidance of doubt the term “Quality Defects” shall exclude defects caused by improper use, damage that occurred after delivery, or deterioration of Products due to the passage of time.
8. LIMITATION OF LIABILITY AND INDEMNITY
Except for the limited Quality Defects warranty of DigMax to the extent permitted by law, this contract expressly excludes every warranty, condition, liability or representation concerning the Product(s). If any condition or warranty is implied into the contract then to the extent permitted by law the liability of DigMax shall be excluded for any such non-excludable condition or warranty, in contract or in tort for any loss or damage or injury arising directly or indirectly from the sale or supply of the product. DigMax’s liability is limited to the invoice value of the product and at DigMax’s option, it may elect to replace Product.
9. BUYER INDEMNITY
The Buyer indemnifies DigMax from every liability, loss, damage, cost or expense directly or indirectly incurred by DigMax caused by or contributed to by any of the following:
(a) the Buyer's failure to comply with any law relating to the Product or the Product’s use; (b) the Buyer’s failure to take every precaution to bring to the attention of any potential users of the Product’s any dangers associated therewith; (c) the Buyer’s making statements about the Product’s performance or characteristics not expressly authorised by DigMax; or (d) the Buyer’s negligence or breach of duty or any breach by the Buyer of these Terms.
The Buyer agrees to indemnify and hold harmless DigMax against any claim, loss or expense which DigMax suffers or incurs through any work required to be done in accordance with any design or instruction furnished by the Buyer including an infringement of a patent, trademark, copyright, registered design or common law right.
lf the Buyer commits an act of bankruptcy, or being a company, does any act which would render it liable to be wound up or has a receiver, administrator, liquidator or controller appointed over its property, or ceases to carry on its business, or if DigMax considers that the creditworthiness of the Buyer has become unsatisfactory, or if the Buyer does not comply with any one or more of its obligations under these Terms DigMax may at its option immediately suspend or terminate the contract and all costs incurred by Digmax up to the date of such suspension or termination or as a result of such suspension or termination shall be payable by the Buyer upon demand.
10. INTELLECTUAL PROPETY
Buyer hereby recognises that the Products may be manufactured by DigMax under licence and/or operated using licenced Software and that in all such cases the Buyer will comply with DigMax’s licencee obligations.
All work undertaken or supplied by DigMax in fulfilling the contract shall remain the property of DigMax, which shall be entitled to the exclusive use thereof. The Buyer must not use any information obtained from Digmax to the advantage of the Buyer or the detriment of DigMax. By buying the Products, the Buyer does not gain any licence or right to any of the intellectual property such as Patents, registered designs, trademarks or copyright or confidential information relating to the Products. DigMax is not obliged to disclose the methods or techniques used in production of the Products and operation of the Software.11. WAIVER OF RIGHTS
All the rights, powers, exemptions and remedies of DigMax shall remain in full force notwithstanding any neglect, forbearance or delay in their enforcement. DigMax shall not be deemed to waive any right, power, exemption or remedy unless such waiver shall be in writing under the signature of a director of DigMax and any such waiver, unless the contrary shall be expressly stated, shall apply to and operate only in the particular transaction, dealing or matter. The exercise of a right by DigMax does not prevent any further exercise of that right or of any other right.
12. ASSIGNMENT
The Buyer may not assign, encumber, declare a trust over or otherwise create an interest in its rights under its contract with DigMax except with DigMax’s express prior written consent.
13. GOVERNING LAW AND JURISDICTION
These Terms are governed by the law in force in New Zealand. Each party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in New Zealand and any court that may hear appeals from any of those courts, for any proceedings in connection with these Terms and the contract between the parties, and waives any right it might have to claim that those courts are an inconvenient forum.
14. INTERPRETATION
These Terms bind and ensure to the benefit of DigMax and its successors and assigns. The provisions of these Terms shall be given a large and liberal interpretation in favour of DigMax.
Any provision of these Terms which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make the Terms enforceable, unless this would materially change the intended effect of the Terms.
15. MEDIATION/ARBITRATION
Any dispute arising out of or relating to these Terms and the contract may be referred to mediation, a non-binding dispute resolution process in which an independent mediator facilitates negotiation between the parties.
Mediation may be initiated by either party writing to the other party and identifying the dispute which is being suggested for mediation. The other party will either agree to proceed with mediation or agree to attend a preliminary meeting with the mediator to discuss whether mediation would be helpful in the circumstances. The parties will agree on a suitable person to act as mediator or will ask the Arbitrators' and Mediators' Institute of New Zealand Inc to appoint a mediator. The mediation will be in accordance with the Mediation Protocol of the Arbitrators' and Mediators' Institute of New Zealand Inc. The mediation shall be terminated by –
(a) The signing of a settlement agreement by the parties; or (b) Notice to the parties by the mediator, after consultation with the parties, to the effect that further efforts at mediation are no longer justified; or (c) Notice by one or more of the parties to the mediator to the effect that further efforts at mediation are no longer justified; or (d) The expiry of sixty (60) working days from the mediator's appointment, unless the parties expressly consent to an extension of this period.
If no mediation is agreed to or if the mediation should be terminated as provided in (b), (c) or (d), any dispute or difference arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in New Zealand in accordance with New Zealand law and the current Arbitration Protocol of the Arbitrators' and Mediators' Institute of New Zealand Inc. The arbitration shall be by one arbitrator to be agreed upon by the parties and if they should fail to agree within twenty-one (21) days, then to be appointed by the President of the Arbitrators' and Mediators' Institute of New Zealand Inc.
INSTAGRAM
THIS INSTAGRAM ACCOUNT IS TEMPORARY UNAVAILABLE