Sony New Zealand Limited ("Sony")
Terms and Conditions of Sale and Service ("the Terms")
1.The Terms and authorised dealer agreement (if applicable) between Sony and the buyer ("Buyer") together with Sony’s invoices to the Buyer (which Sony may issue from time to time pursuant to the Terms and/or authorised dealer agreement) constitute the contract between Sony and the Buyer for the sale and purchase of the goods and/or services specified in Sony's invoices to the Buyer. The [authorised dealer agreement] shall prevail to the extent of any inconsistency between the Terms and the authorised dealer agreement. Sony may modify the Terms in whole or part from time to time, and if it does, the modified Terms shall be incorporated into the contract from the date Sony notifies the Buyer of the modified Terms.
2.Any quotation, price list or brochure supplied by or on behalf of Sony is not an offer which the Buyer can accept. All orders placed by the Buyer shall incorporate the Terms and shall constitute an offer which Sony may in its discretion accept. Any part of any order inconsistent with the Terms, shall be void unless it is expressly accepted by Sony in writing.
3.All goods and/or services supplied from time to time by Sony to the Buyer shall be supplied under this contract which shall be continuous in nature. Delivery of goods by instalment or separately shall be deemed to be delivery under this contract and not under separate contracts.
4.To the extent permissible by law, apart from the Terms, and any warranty contained in a Sony consumer product warranty card ("warranty") provided either directly by Sony to the Buyer purchasing as a consumer (within the meaning of the Consumer Guarantees Act 1993) or in accordance with clause 14, all other conditions, warranties, descriptions, representations, and conditions as to fitness or suitability for purpose, tolerance of any conditions, merchantability or otherwise (whether of a like nature or not) and whether express or implied by law, trade custom or otherwise are expressly excluded.
Price and Payment
5.The Contract Price shall be paid by the 20th day of the month following the date of invoice. The "Contract Price" means the aggregate of the price for the goods and/or services at the date of invoice together with the cost of freight to the Buyer's premises and any applicable sales, value added, excise, goods and service tax (and any other tax) in relation to the supply of the goods and/or services and all other charges on their supply and delivery.
6.If the Buyer does not pay the Contract Price by the due date (which shall constitute a default under this contract pursuant to clause 17), without prejudice to any other right or remedies, Sony may charge interest on such unpaid amount, at a rate equal to 8% per annum above Sony's principal bank's lending base rate, calculated on a daily basis and compounding monthly from the due date. Such interest shall form a part of the Contract Price.
7.Delivery shall be made at the place agreed between the parties, or at Sony's premises, if no place is agreed. If delivery is made elsewhere than at Sony's premises, Sony has the right to select the method of delivery and the carrier. Delivery may be made by instalments, at the sole option of Sony.
Risk and Insurance
8.The Buyer shall:
(a) bear the risk of any loss, damage or deterioration of or to the goods from the time of delivery of the goods.
(b) While the goods continue to secure the Buyer's Indebtedness and Obligations (as such term is defined in clause 9(a)), the Buyer must keep the goods insured in the names of Sony and the Buyer for their respective rights and interest and must produce to Sony, upon demand, such evidence as Sony may require to confirm the existence of such insurance. If the Buyer defaults in complying with its obligations under this clause, Sony may insure the goods and the cost of effecting such insurance must be paid by the Buyer to Sony upon demand.
9. (a) The Buyer grants to Sony a security interest in the goods as security for payment of the Contract Price and all other moneys payable from time to time to Sony by the Buyer, and for the performance by the Buyer of all the Buyer’s other obligations from time to time to Sony, (together the "Buyer’s Indebtedness and Obligations"). For the purposes of section 36(1)(b) of the Personal Property Securities Act 1999 ("PPSA"), and to ensure maximum benefit and protection for Sony by virtue of section 36(1)(b)(iii) of the PPSA, the Buyer confirms and agrees that the Buyer intends to and does grant to Sony, as security for the Buyer’s Indebtedness and Obligations, a security interest in all of the Buyer’s present and after-acquired property except only for any such property which is or comprises items or kinds of personal property (“Excepted Property”);
(i) in or to which the Buyer has rights; and
(ii) which has not been supplied by Sony to the Buyer, other than any Excepted Property which is or comprises proceeds of any of that present and after-acquired property which has been supplied by Sony to the Buyer.
(b) The Buyer agrees to do anything that Sony requires to ensure that Sony has a perfected security interest and (if applicable) a purchase money security interest in the goods.
(c) Sony may allocate all amounts received from the Buyer in any manner it determines including any manner required to preserve any purchase money security interest in the goods.
(d) While the goods continue to secure the Buyer’s Indebtedness and Obligations, the Buyer must store the goods separately and clearly identify the goods as being subject to Sony’s security interest.
(e) The Buyer agrees that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to this contract, or the security under this contract, and waives the Buyer’s rights under section s 121, 125, 129, 131 and 132 of the PPSA.
(f) The Buyer waives the right to receive a copy of the verification statement confirming registration of a financing statement or financing change statement relating to the security interest under this contract.
(g) The Buyer must advise Sony immediately if the Buyer commits any of the acts specified in clause 17 or of any action by third parties (including any of its creditors) affecting Sony’s security interest in the goods.
10. To the extent permissible by law, and where not inconsistent with any Warranty provided to the Buyer in accordance with clause 4 or clause 14, Sony shall not accept goods for credit unless:
(a) they have been damaged during delivery ("DIT goods") or are not in full working order ("DOA goods") or have been double-delivered or mistakenly supplied; and
(b) the returned goods are accompanied by a Returned Goods Advice Form correctly filled out, and the returned goods are delivered to Sony at its head office administration, and,
(c)in the case of DIT and DOA goods, Sony receives the goods correctly packed in their original carton within 14 days following delivery, and all accessories, instruction manuals and packaging are returned to Sony intact; and
(d) in the case of goods returned because of double-delivery or mistaken delivery:
(i) Sony receives the goods within 14 days following delivery; and
(ii) Sony receives the carton unopened and in good condition with no rips, tears or writing; and
(iii) a written note accompanies the goods stating the invoice number(s) the goods were supplied under (both invoice numbers in the case of double-delivery), the Buyer's name and telephone number, and the reason for the goods return.
Provided that if any goods referred to in this clause are not returned to Sony within the time specified in clause 10(c) or 10(d) (where relevant), the Buyer shall be soley responsible for any claims arising from any damage or alleged damage to the goods no matter how caused.
11. Any time for delivery of goods quoted by Sony pursuant to this contract shall be approximate only and Sony shall not be liable to the Buyer for failure to supply the goods at such time on any grounds whatsoever, including negligence by Sony. Sony shall not be liable for failure to deliver any goods and/or services where such failure is caused by circumstances beyond its reasonable control.
12. To the extent permissible by law, Sony shall not be liable for any loss of profits or any consequential, indirect or special loss, damage or injury of any kind whatsoever whether suffered by the Buyer and/or the Buyer's servants, agents, contractors, purchasers, visitors, tenants, or any other persons (whether similar to the above or not), and whether arising directly or indirectly from any:
(a) defect or non-compliance of goods supplied and/or services performed; or
(b) breach of any of Sony's obligations under or in connection with this contract; or
(c) cancellation or termination of this contract; or
(d) negligence, misrepresentation or other act or omission on the part of Sony, its servants, agents or contractors; or
(e) other cause,
and the Buyer shall indemnify Sony against any claim by any of the persons above or their representatives against any loss, damage or injury for which Sony's liability is excluded by this clause.
13. Notwithstanding anything in clause 12 or elsewhere in the Terms, to the extent permissible by law, Sony's liability, whether in contract or pursuant to cancellation of this contract or in tort or in any other way, concerning all claims for loss, damage or injury which arise directly or indirectly from any of the events set out in clause 12, shall not in aggregate exceed the Contract Price for the goods and/or services concerning which the loss, damage or injury arose.
14. If the Buyer purchases goods under the Terms from Sony for the purpose of on-sale to consumers (within the meaning of the Consumer Guarantees Act 1993), the Buyer shall upon such on-sale, complete and issue to the consumer a Warranty in respect of those goods in such form as Sony may provide the Buyer, provided that such goods are not damaged, defective or shop-soiled at the time of on-sale to the consumer.
15. The Buyer is not authorised to complete and/or issue a Warranty to any person except in accordance with clause 14.
Consumer Guarantees Act 1993
16. Nothing in the Terms is intended to have the effect of contracting out of the provisions of the Consumer Guarantees Act 1993 except to the extent permitted by the Act, and the Terms are to be modified to the extent necessary to give effect to that intention. Where the Buyer supplies goods purchased under the Terms in trade to a person acquiring them for business purposes, it must be a term of the Buyer's contract with that purchaser that the Consumer Guarantees Act 1993 does not apply in respect of the goods. The Buyer agrees to indemnify Sony against any liability or cost incurred by Sony under the Consumer Guarantees Act 1993 as a result of any breach by the Buyer of this clause.
17. In addition to any rights Sony may have under any authorised dealer agreement between Sony and the Buyer, if the Buyer:
(a) fails to pay any moneys due to Sony under this contract or any other contract between the parties on the due date for payment; or
(b) fails to perform any of the Buyer's other obligations under this contract or any other contract between the parties; or
(c) the goods are "at risk" (as that term is defined in the PPSA); or
(d) commits any act of bankruptcy or enters any composition or arrangement with the Buyer's creditors; or
(e) (if a company) does any act which would make it liable to be wound up or if a resolution is passed or proceedings are commenced for its winding up; or
(f) has a receiver appointed over all or any of the Buyer's assets,
Sony, without prejudice to any other rights or remedies, may terminate this contract, and payment for the goods delivered and services performed up to the date of termination and all other moneys payable to Sony shall immediately become due and payable.
18. All the original rights, powers, exemptions and remedies of Sony shall remain in full force and effect notwithstanding any neglect, forbearance or delay in their enforcement. Sony shall not be deemed to have waived any of the Terms unless such waiver shall be in writing. Any such waiver, unless Sony expressly states the contrary, shall apply to and operate only in the particular transaction, dealing or matter.
19. The Terms shall be governed by and construed in accordance with the law of New Zealand and the parties unconditionally and irrevocably submit to the exclusive jurisdiction of the New Zealand courts.