1. DEFINED TERMS
“Goods” means insulated panel products, insulated doors, flashings, polystyrene products, materials or such other items that shall be supplied from time to time by us to you, provided that:
1.1 Where the goods supplied are your inventory, then all references to goods in these Terms shall be read as references to inventory; and
1.2 Where the goods supplied are not inventory then all references to goods in these Terms shall mean the goods described in any one or more of the relevant order form, packing slip or invoice (or its equivalent whatever called) relating to those goods, on the basis that each such document shall be deemed to be incorporated in, and form part of, these Terms.
“Inventory” has the meaning given to that term in the PPSA.
“PPSA” means the Personal Property Securities Act 1999 as amended or substituted from time to time.
“Services” means any repairs or alterations carried out by us from time to time on your behalf.
Unless the context otherwise requires, words and phrases shall have the meanings given to them in, or by virtue of, the PPSA.
2. TERMS OF CONTRACT
2.1 Any goods or services supplied to you shall be subject to these Terms unless we agree in writing to change them. If you place an order with us, request that we undertake any services, accept delivery of Goods from us, or deliver goods to us for services, those actions by you will be deemed to be acceptance of these Terms, notwithstanding anything that may be stated to the contrary in your enquiries or your order.
2.2 You assent to us collecting any information or making such enquiries as we deem necessary to check the creditworthiness of you.
3.1 Where formal quotations are not provided, our prices are subject to alteration without notice and the price payable by you for the goods ordered shall be the price ruling at the date the goods are dispatched for delivery.
3.2 Our prices are exclusive of taxes, duties and other imposts which, if chargeable, are payable by you, whether they are imposed or brought into force before or after acceptance of your order.
4.1 Where we agree to and approve the operation of a trade account, payment by you shall be made no later than the 20th day of the month following the date of invoice for the goods. Goods shall be invoiced upon delivery or upon order due date if you delay delivery.
4.2 All other sales shall be cash sales and payment shall be made by a deposit equal to one half of the purchase price on acceptance of the quotation with the balance being due before delivery.
4.3 Without prejudice to our rights to sue for payment or exercise any other remedy where any payment is not made on the due date, we may:
4.3.1 Demand payment of the arrears as well as payment in advance for any undelivered goods before making any further delivery of goods under this or any other contract between us;
4.3.2 Rescind the contract or any other contract between us, and you shall not be entitled to demand or enforce delivery of any goods or any instalment of goods under this or any other contract;
4.3.3 Notwithstanding the above, the right to restrict or withhold the sale of further goods on credit is reserved where we have reason to doubt your ability to pay for such purchases.
4.3.4 Interest on moneys overdue shall be charged on a daily basis at the rate charged by the Bank of New Zealand and interest shall continue to accrue both before and after Judgment until full payment is made.
4.4 All expenses, costs (including actual legal costs), fees and disbursements incurred by the Company in recovering the money and any other amounts payable under these Terms shall be recoverable from you.
4.5 Failure to comply with payment in accordance with these Terms and Conditions of Sale will invalidate any Warranty for products supplied by us.
5. RETURN OF GOODS FOR CREDIT
5.1 Goods supplied in accordance with the customer’s order can only be returned with our express approval. We shall not be obliged to give reasons for withholding approval:
5.1.1 Requests to return goods must be submitted in writing within five days from date of supply;
5.1.2 Where goods are accepted for credit they must be delivered, at your expense to us in original condition and packaging;
5.1.3 The original invoice number or packing slip number must be quoted;
5.1.4 We reserve the right to levy a restocking fee against any returns we may agree to accept. Such fee may be up to 20% of the sale price of the goods and levied at our absolute discretion.
6.1 Liability for shortages in the quantity of goods supplied is limited to making up the shortages. No claim for shortages in quantity will be allowed unless you give written notification of the shortage within three days of delivery.
7.1 In the event that any part of an invoice is disputed, the amount not under question shall be paid promptly in accordance with the applicable payment terms.
8.1 Ownership in the Goods shall not pass upon delivery, but shall remain with us until full payment for all moneys owing by you to us has been made. Until all moneys have been paid:
8.1.1 You hold the Goods supplied as fiduciary for us and will deal with them as agent for and on behalf of us (but will not hold yourself out as our agent to any third parties);
8.1.2 You shall store our Goods separately consistent with the Goods being our property, and ensure such Goods are able to be separately identified;
8.1.3 If you resell the Goods supplied the proceeds of any resale will belong to us, and you will pay the same into a separate account for which separate records are kept, and all claims which you hold against third parties will be handed over to us;
8.1.4 You irrevocably give us and our agents the right to enter your premises, to remove any of the Goods supplied and resell them;
8.1.5 If any of the Goods become part of a product or mass (through, or by whatever process) such that the identity of those Goods is lost in the product or mass, the security interest created by this clause continues in the product or mass in accordance with the PPSA.
8.1.6 If any of the Goods are installed in, or affixed to, and become an accession to, other goods, the security interest continues in the accession in accordance with the PPSA.
9.1 All Goods delivered to or in our possession, for services are subject to a lien for any sums owing by you to us, for services carried out on the Goods. Where we retain a lien over any of your goods and you are more than three months overdue with any moneys owing, we without further notice may sell the goods in such a manner and such terms as we think fit, and may from sale proceeds repay the amounts to us for work done, and any expenses of sale.
10. RISK AND DELIVERY
10.1 Unless otherwise agreed, you shall be responsible for the cost of and arranging transportation of all Goods. If we are delivering the Goods to you, we will use our best endeavours to see that deliveries are made according to schedule, but shall not be responsible for delivery delays.
10.2 Risk in respect of the Goods sold shall pass to you when the Goods are delivered to you or your carrier, or the time you pay for the Goods, whichever is the earlier. Risk in the Goods in our possession for repairs, remains with you. It is your responsibility to insure the Goods, even if we have arranged transportation of the Goods.
10.3 We reserve the right to dispatch your order in one delivery or by instalments. Where we acknowledge an order which provides for delivery by instalments we shall be entitled to payment for each instalment delivered (as if it were a separate contract) but failure to deliver any instalments shall not entitle you to repudiate the contract as to any remaining instalments.
11.1 Except to the extent of written warranties given by us to you, all warranties and representations in respect of Goods sold or Services supplied are excluded, including (to the extent permitted by law) those expressed or implied by law. Where any written warranty conflicts with clauses 11.2, 11.3, or 11.4 the provisions of clauses 11.2, 11.3 and 11.4 as applicable shall apply.
11.2 We shall not be liable:
11.2.1 Where you have altered or modified the Goods, mis-applied the Goods, or have subjected them to any unusual alterations or handling;
11.2.2 For loss caused by any factors beyond our control.
11.2.3 For any indirect or consequential loss of any kind;
11.2.4 For any goods sold as second grade or factory seconds;
11.2.5 Where the terms of any written warranty have not been complied with;
11.2.6 For any delays in the delivery of the Goods.
11.2.7 Where the goods are not suitable for the purpose for which they are acquired.
11.3 In the event of a short delivery or errors in despatch which would be apparent by inspection on delivery, we will accept no liability unless notified by you in writing within three (3)days of delivery.
11.4 You acknowledge that in any event our liability will be limited to the cost of the goods purchased.
12. ERRORS OR OMISSIONS
12.1 Clerical errors or omissions, whether in computation or otherwise in any quotation acknowledgments or invoices, shall be subject to correction.
13. GENERAL TERMS
If a dispute arises, the parties will try to settle the dispute by mediation before resorting to litigation or arbitration. Any party may initiate mediation by giving written notice to the other. Mediators should be agreed upon by the parties, but if the parties cannot agree on one within seven days after the mediation has been initiated, then the mediator shall be appointed by the chairperson of the New Zealand chapter of
lawyers engaged in alternative dispute resolution.
You may not cancel any order for Goods or part of it without our written consent. If you do so, in addition to any other rights we may have, we may retain any deposit paid. We shall have the right to cancel any orders for Goods which we have accepted, if due to circumstances beyond our control it would be impractical or unreasonable to fill the order, if any information supplied by you is materially incorrect, or if in our opinion a satisfactory repair or alteration cannot be achieved.
13.3 Waiver or variation
Waiver or variation of these Terms by us will only be effective if given in writing by an authorised person. If we waive any of these Terms the waiver will not affect our rights under these Terms at any future time.
13.4 Governing law
These Terms will be interpreted in accordance with and governed by the laws of New Zealand and the New Zealand Courts will have exclusive jurisdiction in respect of all matters between us.
13.5 The Privacy Act
You and any guarantor (if relevant) authorise us to collect and hold personal information from any source we consider appropriate to be used for the purposes of determining credit worthiness, for communicating promotional activities and product information, for debt collection purposes, or for any other related purpose. You further authorise us to disclose persona information held by us for the purposes set out above to any other parties. You understand that you have a right of access and may request correction of personal information held by us about you.
13.6 Consumer Guarantees Act (CGA)
If the CGA applies, these terms and conditions shall be read subject to your rights under the CGA, provided that where you are acquiring goods or having them serviced for business purposes the CGA shall not apply.
You acknowledge and agree that:
14.1.1 By assenting to these Terms, you grant a security interest (by virtue of the retention of title clause in clause 6 of these Terms) to us in all Goods previously supplied by us to you (if any) and all after acquired Goods supplied by us to you (or for your account); and
14.1.2 These Terms shall apply notwithstanding anything, express or implied, to the contrary contained in your purchase order.
14.2 Financing Statement:
You undertake to:
14.2.1 Sign any further documents and/or provide any further information (which information you warrant to be complete, accurate and up-to-date in all respects) which we may reasonably require to enable registration of a financing statement or financing change
statement on the Personal Property Securities Register:
14.2.2 Not register a financing change statement or a change demand in respect to the goods (as those Terms a re defined in the PPSA) without our prior written consent; and
14.2.3 Give us not less than 14 days prior written notice of any proposed change in your name and/or any other changes in your details (including but not limited to, changes in your address, facsimile number, trading name or business practice.
14.3 Waiver and contracting out:
14.3.1 Unless otherwise agreed to in writing by us you waive the right to receive a verification statement in respect of any financing statement or financing change statement relating to the security interest.
14.3.2 To the maximum extent permitted by law, you waive your rights and, with our agreement, contract out your rights under the sections referred to in sections 107 (2) (c) to (e) and (g) to (I) of the PPSA.
14.3.3 You agree that nothing in sections 114 (a), 133 and 134 of the PPSA shall apply to these Terms and, with our agreement, contract out of such sections.
14.3.4 You and we agree that section 109 (1) of the PPSA is contracted out of in respect of particular Goods if and only for as long as we are not the secured party with priority over all other secured parties in respect of those Goods