ALLIED PLUMBING, GAS AND DRAINAGE LIMITED
TERMS OF TRADE
(a) The Company accepts the customer’s order on these conditions which conditions (together with the Company’s acceptance) constitutes the entire agreement between the Company and the customer (except to the extent that such terms and conditions are modified in writing and signed by both parties) and it is expressly agreed that there are no other understandings, representations or warranties of any kind (express or implied) forming part of this contract.
(b) Any variation, waiver or cancellation of the customer’s order shall be of no effect unless accepted in writing by the Company.
(c) If any of these terms or conditions or part thereof are held to be invalid, illegal, unenforceable or void for any reason, all of the remaining terms and conditions (or part thereof) shall remain in full force and effect.
(d) The customer agrees that in the event of default of settlement of any account due, the customer shall pay upon demand, all reasonable costs, charges and legal expenses (including costs between solicitor and own client) including any collection costs incurred by the Company in recovering the outstanding account from the customer.
- PRICE AND TERMS OF PAYMENT
(a) The Company’s prices are subject to alteration without notice and the price payable by the customer for the goods ordered shall be the price agreed to between the Company and the customer or in the absence of such agreement the price ruling at the date the goods are despatched. The onus is on the customer to confirm prices prior to each delivery. Quotations are valid for ninety (90) days from date of issue.
(b) The Company’s prices referred to in this contract and in any quotation which may have formed the basis of this contract are exclusive of Goods and Services Tax (unless stated otherwise). The customer shall pay Goods and Services Tax on the goods and/or services the subject of this contract, as invoiced by the Company.
(c) All accounts are due for payment on the 20th day of the month following the month in which the goods (or any instalment of the goods) and/or services are delivered.
(d) Without prejudice to its rights to sue for payment or exercise any other remedy where any payment is not made by the due date the Company may:
(i) Reinvoice the goods and/or services at the then current full retail price.
(ii) Charge the customer interest on the amount outstanding at the rate equal to 2.5% per month or part month (accruing daily) from the due date of payment until payment is received by the Company but the charging of interest does not extend the time for payment nor imply any forbearance to sue or otherwise recover overdue monies.
(iii) Demand payment of the arrears as well as payment in advance for any undelivered goods before proceeding with making any further delivery of goods and/or services under this contract.
(iv) Rescind this contract and the customer shall not be entitled to demand or enforce delivery of any goods and/or services or instalment of goods and/or services under this contract.
(e) Late payment will result in forfeiture of any discount offered. All monies received will be applied against the oldest outstanding invoice.
(a) If the customer fails or refuses or indicates to the Company that the customer will fail or refuse to take or accept delivery, then the goods and/or services shall be deemed to have been delivered when the Company was willing and able to deliver them.
(b) Where the Company acknowledges an order which provides for delivery by instalments, the Company shall be entitled to payment for each instalment delivered (as if it were a separate contract) but failure to deliver any instalment shall not entitle the customer to repudiate the contract as to any remaining instalments.
(c) Any quotations of delivery times by the Company are made in good faith but as estimates and not commitments. The Company shall not be bound by such estimates.
(d) Proof of delivery information will not be provided by the Company beyond 60 days from date of invoicing.
The Company’s liability for shortages in the quantity of the goods supplied is limited to making up the shortages. No claim for shortages in quantity will be allowed unless the customer gives written notification of the shortage in writing within three (3) days of delivery and provides a reasonable opportunity for the Company to take all necessary steps to investigate the claim.
- RISK AND INSURANCE
(a) Risk (including, without limitation, insurance responsibility) of any loss, damage or deterioration of or to the goods shall pass to the customer on delivery.
(b) The liability of the Company in respect of the failure to deliver for reasons within its control or goods that are inadequately packed or where the Company uses its own delivery vehicles to transport the goods to the customer or where risk has not passed to the customer (and where such liability in either case is in contract or in tort), shall be limited to refunding or crediting the customer with the purchase price or at the option of the Company, to providing replacement goods.
(c) Risk shall pass back to the Company only if the Company exercises its right of repossession pursuant to clause 7(f) and in that regard risk shall pass back to the Company only if the Company repossesses the goods.
In the event that any part of the invoice is disputed the amount not under question shall be paid according to applicable payment terms. Any claim or dispute arising hereunder shall be subject to arbitration in accordance with the Arbitration Act (1999) or any amendment thereto. The customer waives the right to make any claim if not made within fourteen (14) days of delivery.
(a) Ownership of all goods sold by the Company is retained by the Company until full payment is received for all amounts owing (including any default interest pursuant to clause 2(d) and enforcement and legal costs pursuant to clause 1(d)) in respect of all goods supplied.
(b) Until payment is made the customer agrees to:
(i) Enable the goods to be readily identifiable as the property of the Company.
(ii) Maintain the goods so supplied in good order and condition and to return the goods immediately if called upon to do so by the Company.
(iii) Insure the goods and pay all insurance premiums and provide the Company with a copy of all insurance policies if demanded.
(c) The customer hereby agrees to meet all costs of and any incidentals in the recovery of the said goods by the Company as well as any shortfalls between the amount owing and the value of the goods recovered.
(d) Notwithstanding the retention of ownership, the customer may prior to payment in full, as agent for the Company, sell the goods under a bona fide transaction in the ordinary course of business not intended to deprive the Company of the benefit of the retention of title.
(e) The Company shall be entitled forthwith to cancel the customer’s rights under the terms of trade by notice to the customer if the customer defaults in payment on the due date, time for which is strictly of the essence or fails to comply with any of these general conditions or any terms of any particular contract of sale between the Company and the customer, or if the Company receives any information which, in the opinion of the Company, indicates uncertainty as to the customer’s ability to meet its financial commitments. The right of cancellation under this clause is in addition to any other right of cancellation the Company may have whether pursuant to these general conditions or any particular contract of sale, or any statute or at common law or in equity.
(f) If cancellation occurs pursuant to clause 7(e), or upon cancellation pursuant to any other right, the customer hereby gives the Company irrevocable authority, without prejudice to any other rights or remedies of the Company, to:
(i) Recover possession of all goods in respect of which the Company has retained title whether or not such goods are fixed to any building, including processed goods, either by removing the goods from the possession or control of the customer, the duly appointed liquidator or receiver of the customer, the customer’s purchaser, or the duly appointed liquidator or receiver of the customer’s purchaser.
(ii) Enter any premises, and if need be forcibly, for the purposes of repossession or impounding any goods whether or not such goods are fixed to any building, and, in such event the customer shall indemnify the Company against all claims that may be made upon the Company as a consequence of the Company’s exercising such power of entry and removal.
(iii) Employ the services of any person or enter upon and remain upon any premises occupied by or controlled by the customer to exercise any of the proceeding rights.
(iv) Give notice to any third party of the Company’s rights pursuant to these general conditions and of the exercise of any of the Company’s rights or remedies and the customer shall have no claim against the Company for any loss, direct or indirect, suffered by the customer as a consequence of such notice being given by the Company.
(g) Upon termination of the customer’s rights pursuant to clause 7(c), or pursuant to any other right of the Company, and without prejudice to any other rights or remedies of the Company, the Company shall be entitled to sell all goods fully or partly owned by the Company. In the event of such sale, the Company shall have no obligation to account to the customer for any part of the proceeds of sale PROVIDED THAT if the total proceeds of sale exceed in value all sums owed by the customer to the Company pursuant to all contracts between the customer and the Company less any diminution in value of the goods, then the Company shall have no further claim on the customer and shall refund to the customer the difference between the sale price and the total indebtedness of the customer to the Company.
- PERSONAL PROPERTY SECURITIES ACT 1999
It is agreed and acknowledged that by these terms and conditions:
(a) A Purchase Money Security Interest (“PMSI”) pursuant to the Personal Property Securities Act 1999 (“PPSA”) is granted in priority to all other creditors by you in favour of the Company in all goods from time to time supplied (all present and after acquired property);
(b) The Company may at the customers cost register the PMSI interest under the PPSA by registering a financing statement and if at some later date additional or different property is supplied, to provide if necessary for registration a new collateral description by registering a financing change statement. This will not affect the Company’s right to register subsequent financing statements, and to register subsequent financing change statements in respect of any other amendments;
(c) The customer agrees to provide the Company with such information as it may need to enable registration of the PMSI under the PPSA and shall promptly execute any documents to ensure that the security interest under these terms and conditions is a first ranking perfected security interest and waive the right to receive a copy of the verification statement issued upon registration of the financing statement or of any financing change statement;
(d) That the customer has received valuable consideration from the Company and agree that it is sufficient; and
(e) The customer shall not under any circumstances initiate any change to the registered financing statement.
- COMPANY’S LIABILITY
(a) The customer shall ensure that the goods ordered are fit and suitable for the purpose for which they are required and the Company is under no liability if they are not.
(b) In lieu of any warranty, condition or liability implied by law, the Company’s liability in respect of any defect in or failure of the goods supplied or for any loss, injury or damage attributable thereto is limited to making good the replacement or refunding the purchase price of defects arising under normal proper use and maintenance arising solely from faulty materials or workmanship within six (6) months of the date of supply provided always that such defective goods are promptly returned to the Company, unless otherwise arranged. At the termination of the appropriate period all liability on the Company’s part ceases.
(c) This warranty does not cover damage from misuse, accident, neglect, installation, modification, adjustment or maintenance.
(d) Any advice, recommendation, information, assistance or service (“customer information”) provided by the Company in relation to the good’s use or application is given in good faith and is believed to be appropriate and reliable. Any customer information provided and any statements or representations made by the Company in relation to any goods supplied by the Company is provided or is made without liability or responsibility on the part of the Company and this provision precludes any court from enquiring or determining the questions referred to in Section 4 of the Contractual Remedies Act 1979.
(e) The Company’s liability under this contract and the warranty in this clause is limited to the customer named in this contract it being agreed that the Company has no liability to any purchaser of the goods from the customer in that the customer’s rights under this contract are not assignable without the prior written consent of the Company.
(f) If, contrary to the disclaimer of liability herein, the Company is deemed to be liable to the customer following the supply of goods and/or services, it is agreed between the Company and the customer that such liability shall be limited to $500.00 in its aggregate.
- FORCE MAJEURE
The Company shall not be liable to the customer for any loss or damage directly or indirectly arising out of or in connection with any delay in delivery of the goods and/or failure to perform any term of this contract where such delay or failure is caused directly or indirectly by an act of God, fire, armed conflict, labour dispute, civil commotion, intervention of a Government, inability to obtain labour, materials or manufacturing facilities, accidents, interruptions of or delay in transportation or any other cause beyond the Company’s control.
(a) Goods will not be accepted for return by the Company without prior authority, and if accepted must be accompanied by:
(i) an acceptable reason for the return to the Company;
(ii) the goods invoice number and date of delivery; and
(iii) the name of the Company’s employee who authorised the goods return.
(b) All goods accepted for return must be in a resaleable condition and in the original packing.
(c) The Company reserves the right to charge a restocking fee of up to 20% of the invoice value for returns made without an acceptable reason to the Company.
- CONSUMER GUARANTEES ACT
The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the customer acquires goods and/or services from the Company for the purpose of business.
- APPLICABLE LAW
These terms of trade are governed and construed in accordance with New Zealand law.
- PRIVACY ACT 1993
The Customer and any person signing these terms of trade hereby consents to the Company making enquiries of and obtaining information (whether such information is personal, confidential, privileged or recorded in a material form or otherwise) from any person whatsoever in relation to the financial standing and credit worthiness of the customer and any of its signatories. The customer and the signatories hereby request and authorise such persons to provide such information and agree that the Company may also supply such information whether obtained by such enquiries or in any other manner whatsoever, to any other person who in the Company’s sole opinion has a legitimate interest in such information.
- PERFORMANCE BOND
15.1 If the Company is providing goods/services pursuant to a contract deemed to constitute a construction contract under the Construction Contracts Act 2002, the customer agrees that the Company may (at the Company’s sole discretion) elect to provide a performance bond instead of agreeing to a retention, in the form of the Company’s “Contractor’s Performance Bond”.