1. INTERPRETATION:
In these terms and conditions of sale:
a) “Seller” means Sticks Building Supplies Limited and its successors and assigns.
b) “Buyer” means the person, firm company or entity buying goods from the Seller.
c) “Event of Default” means an event where:
(i) the Buyer fails to comply with these Terms or any other contract with the Seller, and does not remedy that failure within seven days of receiving notice from the Seller advising them of the failure; or
(ii) the Buyer commits an act of bankruptcy; or
(iii) the Buyer enters into any composition or arrangement with its creditors; or
(iv) if the Buyer is a company:
(A) the Buyer does anything which would make it liable to be put into liquidation; or
(B) a resolution is passed or an application is made for the liquidation of the Buyer; or
(C) a receiver or statutory or official manager is appointed over all or any of the Buyer’s assets or the Buyer, its board or shareholders is considering appointing an administrator or liquidator; or
(D) an administrator is appointed to the Buyer; or
(E) if anything analogous to or having a similar effect to any of the other events arises.
d) “Goods” means all goods the subject matter of any contract for purchase between the Seller and Buyer, together with any Services forming part of the supply of the Goods.
e) “PMSI” means a purchase of money security interest as defined in the PPSA.
(f) “PPSA” means the Personal Property Securities Act 1999.
(g) “Proceeds” has the meaning given in the PPSA.
h) “Services” means any services performed by the Seller as part of supplying the Goods.
i) “Terms” means these terms and conditions of sale.
2. PRICE:
The Buyer shall pay the price indicated on the invoice, order form or other similar document issued by the Seller. Unless otherwise stated prices do not include Goods and Services Tax, other taxes, import duties or other levies or tariffs, freight or insurance charges which, if applicable, will be an extra charge under these terms and shall be paid by the Buyer. All payments by the Buyer shall be made in full, free and clear of any deduction, withholding, set-off, counterclaim or any equitable or legal claim.
3. PAYMENT:
Payment of all accounts is to be made by the 20th day of the month following the month of the date of the invoice but the Seller reserves the right to require cash on delivery or other payment terms. Sticks may impose a credit limit on the Buyer’s account and alter the credit limit without notice. Notwithstanding such credit period, full payment for all Goods at any time supplied by the Seller shall become due immediately if an Event of Default occurs. Any disputes or credit requests by the Buyer relating to an invoice issued by the Seller for Goods supplied must be received in writing within 30 days from the date of invoice. The Buyer may not withhold payment or make any deductions from or set off any amount against any amount owing without the Seller’s prior written consent. If the Seller at any time deems the credit of the Buyer to be unsatisfactory, it may require security for payment and may suspend the performance of its obligations until the provision of sufficient security. If any payment is overdue in whole or in part, the Seller may (without prejudice to any of its other rights or remedies) recover and may resell any goods owned by the Seller. The Buyer hereby grants to the Seller an irrevocable licence to enter at any time any premises or place where the Goods are held or thought to be held and to remove the Goods. The Seller shall not be liable for any damage, injury or loss howsoever reasonably caused resulting from such recovery or sale and any costs incurred by the Seller in respect of such recovery of sale shall be payable by the Buyer upon demand.
4. DEPOSIT:
If demanded by the Seller, a deposit of 10% of the price of Goods shall be paid by the Buyer immediately upon order of Goods. The deposit shall form part of the price.
5. LATE PAYMENT:
Failure by the Buyer to make payment of any amount payable pursuant to these Terms on the due date shall constitute an Event of Default and, without prejudice to any other rights or remedies of the Seller, the Buyer shall pay to the Seller default interest on any such amount at the rate of 1.5% per month. Such interest shall be payable upon demand and shall accrue on a daily basis from the due date for payment and be compounded monthly.
6. COSTS:
If the Buyer defaults in performing its obligations under these Terms and the Seller incurs expenses in enforcing its rights under these terms the Buyer shall pay those expenses (including full legal costs on a solicitor and own client basis and costs of collection) to the Seller on demand.
7. VARIATION:
These Terms shall apply to all contracts for the supply of Goods made between the Seller and Buyer and shall not be deemed or construed to be modified, rescinded or varied in whole or in part except by written amendment by the parties.
8. DELIVERY:
Unless requested in writing delivery will be made to the road entrance to the nominated site and in the event that delivery is requested onto the site, the Seller shall not be responsible or held liable in any way for any damage that may occur on the site. The Buyer agrees to be responsible for all and any charges or costs that are incurred (including towage) for delivery past the road entrance onto the site.
In the event that the Seller agrees to sell “ex yard”, delivery will be deemed complete when the Seller has placed the Goods at the disposal of the Buyer or delivered the Goods into the possession of the freight company transporting the goods on behalf of the Buyer.
The Seller may deliver the Goods in instalments. Each instalment shall be treated as a separate contract subject to these Terms. Failure to fully deliver any instalment of the Goods shall not entitle the Buyer to cancel any contract relating to any other instalment of the Goods.
Any time stated for delivery is an estimate only. Other than liability that cannot be excluded by law, the Buyer is not liable for any delay in delivery.
9. RISK AND INSURANCE:
The risk in the Goods shall pass to the Buyer upon delivery provided that if the Buyer fails to accept the Goods or requests that delivery of the Goods be delayed, risk in the Goods shall be borne by the Buyer from the time of such failure or request, as the case may be. The Buyer shall insure the Goods for their full insurable value at all times after risk in the Goods has passed to the Buyer until ownership of the Goods has passed to the Buyer.
10. WARRANTIES:
(a) The only warranties agreed to by the Seller relating to the Goods are those confirmed by the Seller in writing.
(b) Except as set out in this clause, the Buyer is not entitled to return the Goods for any reason. The Seller shall have no liability in respect of quality, discrepancies or otherwise, unless the Buyer notifies the Seller in writing of its claim within seven (7) days after the delivery and the Seller is able to inspect the Goods to confirm the quality issue or discrepancy. The Seller shall have the option, exercisable at its discretion, to repair or replace any Goods in respect of which any claim is made and proven, or to refund a portion of the applicable price, providing that the Seller will not be liable for Goods that have been tampered with or modified without the approval of the Seller or which have not been stored in a proper manner.
(c) Except for the warranties referred to in clause 10(a), but subject to clause 10(f), to the maximum extent permitted by law the Seller expressly excludes all other conditions, warranties, guarantees, descriptions, representations, conditions as to fitness or suitability or fitness for any purpose, tolerance to any conditions, merchantability, appearance, safety, durability or otherwise (whether of a like nature or not) and whether express or implied by law, trade custom or otherwise.
(d) Notwithstanding any other provision of these Terms, other than clause 10(f), under no circumstances, shall the Seller be liable to the Buyer or any other person (whether in contract, tort, including negligence, statute or otherwise) for any:
(i) loss of profits;
(ii) consequential loss or damage;
(iii) indirect loss or damage; or
(iv) special loss or damage of any kind.
(e) To the maximum extent permitted by law, but subject to clause 10(f) the Seller’s total liability (whether in contract, statute, tort, including negligence, or otherwise howsoever arising) for any claim by the Buyer, or any other person, relating to or arising from the supply of the Goods or any quotation or estimate given shall not exceed the price of the Goods to which the claim relates.
(f) If the Goods are acquired by the Buyer in trade for business purposes, the Consumer Guarantees Act 1993 does not apply to the sale of those Goods and the parties agree that sections 9, 12A and 13 of the Fair Trading Act 1986 do not apply. Nothing in these Terms is intended to contract out of the provisions of the Consumer Guarantees Act 1993 or the Fair Trading Act 1986, except to the extent permitted by those Acts.
11. OWNERSHIP AND SECURITY:
(a) Ownership of the Goods shall not pass to the Buyer and any Proceeds of sale of the Goods shall belong to the Seller until the Buyer has paid for the Goods in full.
(b) As security for all the Buyer’s obligations under these Terms (including for payment of any amounts owing by the Buyer), the Buyer grants to the Seller a PMSI in all of the Goods the Seller agrees to sell to the Buyer under any contract, together with the Proceeds of such Goods. Such security shall continue until all sums owing by the Buyer to the Seller in respect of any Goods supplied have been paid in full.
(d) The Seller may allocate all monies received from the Buyer in any manner it determines, including in any manner required to preserve any PMSI under the PPSA in the Goods.
(e) Until the Seller has received payment in full for the Goods, the Buyer acknowledges and agrees that:
(i) The Seller supplies the Goods to the Buyer on the condition that the Seller has a PMSI in the Goods;
(ii) In relation to goods that are inventory, the Buyer will not allow any non-purchase money security interest to arise in respect of the Goods unless the Seller has perfected its PMSI prior to the Buyer’s possession of the Goods;
(iii) The Buyer will not permit the Goods to become accessions or commingled with other goods or mass if the Seller has not perfected any security interest that the Seller has in relation to the Goods;
(iv) If the Buyer, notwithstanding clause 11(a) of these Terms, sells the Goods before paying the Seller for them, the Buyer will pay the proceeds arising from the sale into a separate account with separate records so that those proceeds remain identifiable and traceable to that sale and the Goods. The Buyer agrees that there will be no other funds in the account. If the Buyer further deals with such proceeds, the Buyer will manage those dealings in a manner so that the proceeds remain identifiable or traceable to the original Goods. If the Buyer sells the Goods before paying the Seller for them, all claims which the Buyer holds against third parties shall be assigned to the Seller.
(d) If the Seller perfects any Security Interest that it has in relation to the Goods, the Buyer will not do anything that results in the Seller having less than the security
or priority position in respect of the PPSA that the Seller assumed at the time of perfection.
(e) The Buyer agrees that to the extent permissible under the PPSA;
(i) The Seller excludes its obligations under the PPSA in respect of any contract for the sale of the Goods, or the security under such contracts; and
(ii) The Buyer waives its rights under sections 121 and 131 of the PPSA. Further, in accordance with section 148 of the PPSA, the Buyer waives its right to receive any financing statement or financing change statement from the Seller.
12. REAL PROPERTY SECURITY:
To secure the Buyer’s obligations under these Terms (including for payment of any money owing to the Seller), the Buyer agrees that the Seller shall have the right, at its absolute discretion:
(a) to require the Buyer on demand to complete and register a mortgage (in the form of the then-current The Law Association (ADLS) all obligations mortgage) over any interest in any property owned or held by the Buyer (whether a beneficial or legal interest and as trustee or otherwise); and
(b) to lodge a caveat against the title to any property in respect of which the Buyer owns or holds an interest (whether a beneficial or legal interest and as trustee or otherwise).
To further secure the Buyer’s obligations under these Terms (including for payment of any money owing to the Seller), the Buyer irrevocably appoints the Seller as the attorney of the Buyer for the purpose of the Seller exercising its rights under this clause whilst any of the Buyer’s obligations remain outstanding. Where the Buyer holds an interest in the property as trustee, then for the purposes of this clause, the Buyer warrants that it has the authority of any co-trustee (if any) to grant the Buyer the rights arising under this clause and such grant is authorised by the relevant trust deed.
13. UNANTICIPATED EVENTS:
Should any cause beyond the control of the Seller including but not limited to any order of a government or other authority, war, strike, lockout, labour dispute, delays in transit, difficulty in procuring components, defaults or suppliers or manufacturers, embargo, accident emergency, act of God or other contingency interfere with the delivery by the Seller or with the performance by the Seller of any of its obligations under these terms then the Seller shall be entitled at its sole discretion to suspend its performance of any such obligation or to cancel any contract for the purchase of goods and shall not be liable to the Buyer in any respect.
14. PRIVACY ACT 2020:
The Seller may collect, use and disclose personal information that identifies the Buyer or the Buyer’s representatives (the “Buyer’s Personal Information”) in accordance with this clause and the Privacy Act 2020. The Seller may use the services of credit reporting and debt collection agencies on an ongoing basis and may exchange the Buyer’s Personal Information with those agencies (including information about default and repayment history). Those agencies may retain the Buyer’s Personal Information and provide that information to other customers who use their services. The Seller may use the Buyer’s Personal Information for direct marketing purposes (including by email and other electronic means), unless the Buyer notifies the Seller that it does not wish to receive direct marketing from the Seller. If the Buyer provides the Seller with any personal information about a third party (such as a guarantor) or authorises the Seller to collect that information, the Buyer confirms that it is authorised by the individual concerned to provide their personal information to the Seller and/or authorise the collection of information about them and that it has informed the individual of their rights to access and request correction of their personal information.
15. BUYER ACKNOWLEDGEMENTS:
(a) All customary building industry tolerances shall apply to the dimensions and measurements of the Goods unless the Seller and the Buyer agree otherwise in writing. If the Seller supplies Goods specially to the Buyer’s specifications or other requirements, the Seller reserves the right to deliver up to 10% over or under the quantity so specified by the Buyer.
(b) The Seller shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Buyer.
(c) If the giving of an estimate or quotation for the supply of the Goods involves the Seller estimating measurements and quantities, the Buyer must verify the accuracy of such estimate or quotation before placing an order for the Goods.
16. ASSIGNMENT:
The Seller may assign these terms and conditions and all or any contracts created pursuant to them to any other person. Without limiting the foregoing, the Seller may assign to any other person all or part of the debt owing by the Buyer to the Seller.
17. REVIEW OF TERMS:
The Seller reserves the right to review and amend any of these terms and conditions at any time. Any change will take effect on orders placed after the date on which the Seller publishes the revised terms on the Seller’s website (www.sticksbuildingsupplies.co.nz).
