PYRO COMPANY FIREWORKS LTD
TERMS OF TRADE
The terms of trade set out below govern all of the supplies of goods (including software) and services from Pyro Company Fireworks Limited (“PCF”, “we”, “us”) to you. They will replace any terms and conditions contained in any document used by you and purporting to have contractual effect, and your acceptance of any goods or services from PCF indicates your continuing acceptance of these terms of trade. These terms of trade are effective from 3 March 2010 and replace all earlier terms of trade between you and PCF.
1. Pyrotechnic and fireworks displays
1.1 It is inherent to the nature of fireworks and pyrotechnics that a fully functioning
item cannot be guaranteed to deliver a perfect or specified result, and
sometimes fireworks may fail to detonate. For example, wind and other
weather conditions affect fireworks’ performance.
1.2 Any specification or other information given by PCF about a product or a
fireworks display is indicative only. Actual displays or product performance
may differ from any specification or other information given by PCF.
2. Delivery and risk
2.1 You are responsible for insurance and risk in the goods from the earlier of the
time they are received by a carrier for delivery to you, or the time they are
collected by you or your agent.
2.2 PCF will not be liable to you for any loss or damage arising in any way from
any delay in delivery or performance.
2.3 You must examine all goods supplied by us immediately when they are
received by you. You must notify us of any shortage or damage within 24
hours after the goods have been received by you. You must notify us of any
non-delivery within 24 hours of the expected delivery time.
3. Quotations, Orders and Prices
3.1 All goods will be supplied at PCF’s published list price as at the date of
delivery, plus goods and services tax. Orders must be confirmed by PCF in
writing. You will be responsible for delivery or freight charges, unless we have
stated otherwise in writing.
3.2 Orders for stock goods may be cancelled if you give written notice to PCF
within 10 days of supply and PCF agrees in writing to the cancellation, and
goods are returned to PCF in new condition in original undamaged packaging.
You may not cancel orders for custom made or indented goods. PCF may
charge a restocking fee.
4. Specifications and intellectual property
4.1 Neither PCF nor its suppliers transfer any right, title or interest in any
copyright, trade marks, or other intellectual property rights relating to any of
the goods, manuals, specifications, designs, drawings, documents or software
(except as set out in the software license) supplied to you.
5.1 Where PCF has agreed in writing to extend credit to you, you must pay in full,
without deduction or set-off, within 7 days following the date of invoice. You
will not be considered to have paid until the payment has been fully cleared
through the banking system into PCF’s bank account. Payments which you
make to PCF will be applied first to any amount owing in respect of service
work, then to payment for any goods which have been purchased as inventory
and which have been sold by you, then to payment for goods supplied by PCF
which have not been sold by you.
5.2 PCF reserves the right to require prepayment or a letter of credit for the whole
or part of the price of the goods or services before accepting any order or part
order. Before dispatching or delivering goods, PCF reserves the right to
require in writing that your bank supply us with a notice stating that payment
for those goods has been made in cleared funds and will not be reversed.
5.3 If you have not paid in full by the due date, PCF may charge you interest
compounding monthly on the unpaid overdue balance at the rate of 5% per
annum above the current overdraft rate charged by PCF's bankers, and PCF
may charge costs (including collection costs and legal costs on a solicitor-
client basis) and suspend delivery of further goods or performance of further
services until the account is paid.
6.1 Property and ownership in goods, whether in their original form or
incorporated into or attached to another product, will not pass to you but will
remain with PCF until PCF receives payment in full of the purchase price of
the goods and all other amounts that you owe to PCF for any reason.
6.2 Until property passes to you, you shall receive and hold any goods as
fiduciary bailee for PCF and store and sell them in a manner to enable them
to be identified and cross-referenced to particular invoices.
6.3 Unless otherwise notified in writing, where goods are supplied to you as
consignment stock or inventory for resupply (including by way of attachment
to or incorporation into manufactured or assembled goods), you are
authorised to sell the goods in the ordinary course of your business, but you
must keep the proceeds of any goods sold in a separate account in trust for
6.4 Notwithstanding clause 5.1 above, all payments shall immediately become
due to PCF if we reasonably believe that the information which you have given us in
your application for credit or on any order document is not correct and you have failed
to give us correct information within 5 days of our request, if you sell or otherwise
dispose of any equipment, or machinery without our consent, if you become insolvent,
commit any act of bankruptcy, or if a receiver, liquidator, administrator or statutory
manager is appointed over any of your assets or undertaking, if you fail to comply
with any of the provisions of clause 6, or if you make or attempt to make an
arrangement or composition with creditors.
6.5 Where PCF reasonably believes that any collateral is at risk or that you are or
are likely to be in breach of any part of clauses 5, 6 or 7 of this agreement,
PCF or its agent may enter any premises under your control without further
notice to remove any goods which are the property of PCF, including goods
which are installed in or affixed to other goods, and you indemnify PCF
against all costs including legal costs on a solicitor client basis and claims in
respect of its exercise of rights under clauses 5, 6 or 7.
7. Security interests
7.1 If we already have a perfected security interest in goods we supply to you
together with their proceeds, that security interest is continued under these
terms of trade. Otherwise, you grant us a security interest in the goods that
we supply to you together with their proceeds, whether or not those goods
have become accessions to other goods or processed or commingled into
other goods. You agree that you will do all acts necessary and provide to us
on request all information we require to register a financing statement over
the goods and their proceeds, and that you will advise us immediately in
writing of any changes to that information. You waive all rights to receive a
copy of any verification statement of a financing statement. The goods and
services subject to the security interest will be described on our invoices.
7.2 You agree that you will supply PCF, within 2 business days of its written
request, with copies of all security interests registered over your personal
property, and you authorise PCF as your agent to request information from
any secured party relating to any security interest which is held in any
personal property which is or has been in your possession or control.
7.3 You agree that PCF at its option may require you to pay all reasonable costs,
including legal costs on a solicitor client basis, associated with the discharge
or amendment of any financing statement registered by PCF, whether or not
the change was initiated by you.
7.4 If we repossess goods under this agreement, we may retain those goods or
dispose of them without notice to you and, after deducting reasonable costs of
sale, credit any surplus, by way of setoff against any sums owing to us. We
shall not be obliged to furnish you with a statement of account or to pay to any
other person any sum in excess of the total amount you owe us at the time we
credit your account. We will not be obliged to reinstate this agreement or
resupply any repossessed inventory or equipment to you.
8. PCF Warranties
8.1 To the greatest extent permitted by law, goods are subject only to the PCF
limited warranty supplied with the product, if any. Any PCF warranty will be
invalid if you fit parts to the warranted product that have not been supplied by
PCF, if you fail to follow instructions supplied by PCF, if you have the
warranted product serviced by any person other than an authorized PCF
service agent, if products are displayed or stored in a manner that impacts on
their performance, if products are modified after they have left the control of
PCF, or if products are used or operated by a person who is not properly
trained and licensed to use those products.
8.2 PCF will supply certificates required for compliance with NZ statutes related to
pyrotechnics and fireworks before first supply of goods, and subsequently on
reasonable written request from you.
8.3 Unless PCF has agreed in writing before supply of goods to you, PCF will not
supply certification or other documentation required for compliance with
statutes related to pyrotechnics and fireworks in countries other than New
8.4 In placing an order to purchase goods from us, including fireworks and other
pyrotechnic supplies, you warrant that you have all certification, permits,
qualifications and other legal requirements for purchasing those goods.
8.5 You are responsible for the cost of returning goods to PCF for warranty
service, and you may be responsible for additional costs including (but not
limited to) freight and travel. You are responsible for all costs of product
servicing services acquired from PCF at PCF’s standard rates.
8.6 Any warranty will be voided by unreasonable use, damage or misuse
(including problems caused by misuse or damage after the goods have left
PCF’s care), negligent installation or operation, inadequate packaging,
cleaning or maintenance, unauthorised repairs, modifications, the addition of
hardware, software or consumables not supplied by PCF, display or storage
in a manner that impacts on products’ performance, or if products are
modified after they have left the control of PCF. You will not be entitled to the
benefit of any warranty if any sum that you owe PCF for any reason is
8.7 Where the goods or services that you acquire from PCF are not of a kind
ordinarily acquired for personal household or domestic use or consumption, or
where you acquire, or hold yourself out as acquiring, the goods or services for
the purposes of a business, the provisions of the Consumer Guarantees Act
1993 and the conditions, warranties and guarantees set out in the Sale of
Goods Act 1908 or implied by common law will not apply and are excluded
from these terms of trade.
9. Customer Warranties
9.1 You warrant that you will use or re-sell goods supplied by PCF only in
accordance with all New Zealand laws, and all laws of the jurisdiction where
the goods are located, including the Hazardous Substances and New
Organisms Act 1996 and all regulations under that Act, and any successor Act
to that Act and all legal obligation relating to Health and Safety. 11.2. You
warrant that at all relevant times you will have all certification required by law
to store, operate, use and/or re-sell fireworks and pyrotechnic products
supplied by PCF, and that you will comply with all legal requirements relating
to storage, operation, use and/or re-sale of fireworks or pyrotechnic products.
You indemnify PCF against all costs or losses (including legal costs on a
solicitor – client basis) arising from your failure to comply with this clause 9.1.
This clause will survive termination of this agreement.
9.2 You indemnify PCF against all costs or losses (including legal costs on a
solicitor – client basis) arising from claims by third parties related to the goods
that we supply, after those goods have left out control, including claims arising
from your possession, sale or use of fireworks or pyrotechnic products after
those products have left our control. This clause will survive termination of this
9.3 By purchasing products from PCF, you agree that you will use only PCF-
supplied spare parts and equipment with those PCF products, and that you
will have all service work carried out by service agents authorized by PCF.
9.4 If you acquire any goods or services from PCF for resupply as, or incorporate
or attach any goods or services acquired from PCF into, goods or services
ordinarily acquired for personal household or domestic use or consumption
(“Consumer Products”) you warrant that:
(a) if you supply the Consumer Products directly to an end user/consumer
you will do so using terms and conditions of supply which exclude
liability for any claims under the Consumer Guarantees Act 1993; and
(b) if your customer acquires the goods for resupply, your customer and
each person in the distribution chain will exclude liability in its contract
for supply for any claims under the Consumer Guarantees Act 1993,
but in each case only where the end user/consumer acquires the Consumer
Products for business purposes.
9.5 You must indemnify PCF and its suppliers against any failure by you, your
customers or any person in your distribution chain to properly contract out of
liability to business end users/consumers under the Consumer Guarantees
10. Compliance with Applicable Laws
10.1 You warrant that all technology, technical information and technical data
received directly or indirectly by you from PCF under these terms of trade is
intended solely for the use of you and your customers in New Zealand. You
agree that these goods will not be exported to any other country without
PCF's prior written consent.
11. Health and Safety
11.1 You must not modify any fireworks or pyrotechnic products supplied by PCF.
11.2 You must not operate any fireworks or pyrotechnics products supplied by PCF
unless you have all certification required by law, and have complied with all
other legal requirements relating to fireworks or pyrotechnic products.
11.3 You agree to comply with all instructions and information given to you by PCF
relating to health and safety concerning any aspect of the goods and/ or
services that PCF supplies or the safety of any person.
11.4 You agree that you will use or resupply goods supplied by PCF only in
accordance with instructions and information supplied by PCF.
11.5 PCF reserves the right to refuse to provide goods or services, or to carry out
pyrotechnic displays or to delay supply of goods or services or the carrying
out of pyrotechnic displays where PCF believes, in its entire discretion, that
health and safety concerns require that refusal or delay, including because
weather, crowd or other conditions create health and safety risks.
12. Limitation of liability
12.1 PCF will not be liable for any losses of any kind or any delay in supplying
goods or services which are caused in whole or in part by force majeure or
any other cause beyond its reasonable control. PCF shall not be required to
settle a strike or lockout or other industrial disturbance against its wishes in
order to benefit from this clause.
12.2 To the maximum extent permissible by law, PCF, and its employees,
contractors and agents, any manufacturer(s) or developer of goods or any of
their materials or components and any suppliers of services, will not be liable
to you or to any other person for loss or damage of any kind however that loss
or damage is caused or arises. This exclusion of liability includes, but is not
limited to, direct or indirect loss, costs (including costs of returning goods to
PCF or to any manufacturer), loss of data, consequential loss, loss of
contracts, loss of profits and damage caused by or arising from delays in
manufacturing or delivery, faulty or delayed installation, unreasonable use,
negligence (including a failure to do something which should have been done
or to prevent something from happening), faulty specifications and design,
and faulty materials or components of the goods. If in spite of this exclusion
PCF is found liable to you for any reason, its liability to you (including costs of
all kinds) shall be limited to the amount paid or payable for the goods or
services giving rise to the liability. You indemnify PCF against all costs and
losses from claims from third parties arising for any reason whatsoever as a
result of your resupply, use or misuse of the goods.
13. General Conditions
13.1 PCF reserves the right to change these terms of trade from time to time by
notice to you in writing.
13.2 If PCF fails to enforce any terms or to exercise its rights under these terms of
trade at any time, PCF has not waived those rights.
13.3 If any provision of these terms of trade is held to be invalid or unenforceable
for any reason, the remaining provisions shall remain in full force and effect
and the parties shall adjust their respective rights and obligations in
accordance with the spirit and intent of the parties as shown by these terms of
13.4 Any agreement between you and PCF is governed by the laws of New
Zealand. You agree that any dispute is subject to the non-exclusive
jurisdiction of the New Zealand courts although PCF reserves the right to
commence any proceedings against you in any other court.