- 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) “Goods” means all goods the subject matter of any contract for purchase between the Seller and Buyer.
- d) “Terms” means these terms and conditions of sale.
- e) “PPSA” means the Personal Property Securities Act 1999.
- 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.
- 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. Notwithstanding such credit period, full payment for all goods at any time supplied by the Seller shall become due immediately upon the Buyer becoming Insolvent or upon the commencement of any act or proceeding in which the Buyer’s insolvency is involved or if the Buyer resolves to go into liquidation or a liquidation order is made or has a receiver, liquidator or official manager appointed in respect of all or any of its assets. If the Seller at any time deems the credit of the Buyer to be unsatisfactory, it may require security for payment and may suspend 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 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.
- 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.
- PENALTY FOR LATE PAYMENT: Failure by the Buyer to make payment of any amount payable pursuant to these Terms on the due date shall constitute a default and, without prejudice to any other rights or remedies of the Seller, the Buyer shall pay to the Seller penalty interest on any such amount at the rate per annum equal to 2% plus the current overdraft rate per annum available to the Seller from a banker nominated by the Seller. Such interest shall be payable upon demand and shall accrue on a daily basis from the due date for payment and be compounded monthly.
- 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) to the Seller on demand.
- 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.
- MANUFACTURE:
(a) If the Seller manufactures the goods the Seller warrants the manufacture against faulty workmanship for a period of six months from the date of delivery of the goods.
(b) The Seller warrants that the manufactured goods will substantially conform with written specifications supplied by the Buyer.
(c) If the Seller supplies goods outside the Seller’s general range of goods and/or manufactures specifically 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.
(d) A claim under this clause must be in writing to the Seller within six (6) months from the date of delivery of the goods and no claim can be made under this clause
unless and until the price is paid in full. The Buyer must also give the Seller notice of any defect in the goods within seven (7) days of the defect becoming apparent. (e) The Seller’s liability under this clause will be limited in its sole discretion to; (i) Restoring the goods in conformity with the written specification supplied by the Buyer or
(ii) Replacing the goods or
(iii) Refunding the price.
(iv) Any repairs will be done at such place as the Seller specifies and the Buyer is responsible for cartage of the goods or parts of the goods as is necessary to and from the place so specified.
(v) The repair of the goods under this clause does not include the cost or removal of defective material and fixing replacement material. (vi) The warranty under this clause does not apply to goods repaired by any person not authorised by the Seller and does not apply if the goods are used for purposes other than that for which they were intended.
- 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 on to 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 on to 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.
- 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 request 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.
- WARRANTIES:
(a) The Seller warrants only that the goods are of the quality agreed. There are no other warranties of merchantability or fitness for a particular purpose and all other representations, statements, warranties or conditions whether statutory or made by any representative or agent of the Seller or otherwise whether express or implied are hereby excluded.
(b) The Seller shall have no liability in respect of quality or otherwise unless the Buyer notifies the Seller in writing of its claim within seven (7) days after the delivery. 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, thereto, thereby fully discharging all legal liability of the Seller.
(c) The Seller shall not be liable for any loss of profits or any consequential, indirect or special loss, damage or injury of any kind whatsoever suffered by the Buyer.
(d) The Buyer shall indemnify the Seller and hold it harmless against any claim by any of the Buyer’s employees, agents, contractors, customers or by any other person in respect of any loss, damage or injury arising directly or indirectly from any breach of any of the obligations of the Seller or from any negligence on the part of the Seller in respect of goods supplied to the Buyer.
- REJECTION: The Buyer shall not have any right of rejection but shall in the event of any dispute, including disputes regarding quality, accept and pay for the goods and later settle any claim with the Seller. If, notwithstanding this clause, any goods are rejected by the Buyer, the Seller shall be free to sell such goods without prejudice to any claim the Seller may have against the Buyer for damages or for any other rights or remedies of the Seller.
- OWNERSHIP:
(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) The Buyer acknowledges and agrees that the Seller may register any security interest that the Seller has in respect of the goods and their proceeds on the Personal Property Securities Register and that such security interest survives until the goods are paid for in full.
(c) 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 8(a) of this agreement, 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 handed over 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) If the Seller is a secured party under the PPSA;
(i) The parties contract out of Part 9 of the PPSA as follows; the rights and obligations contained in sections 114, 125, 129, 132, 133 and 134 of that Part do not apply between the Seller and the Buyer, and
(ii) The Buyer waives its rights under section 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.
(f) The Buyer will assist the Seller by completing any formalities or providing any information required by the Seller to establish and maintain the best security position that it is entitled to under the PPSA.
- 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.
- CONSUMER GUARANTEES ACT: The Buyer agrees and acknowledges that all supply of goods and services from the Seller are/will be acquired for the Buyers business purposes and accordingly the provisions of the Consumer Guarantees Act 1993 will not apply as between the Buyer and Seller.
- PRIVACY ACT 1993: The Buyer authorises the Seller to obtain at any time from any person or entity any information the Seller may require to process and/or accept any application for credit the Buyer may make to the Seller or to perform or complete any of the other purposes for which the Buyer has provided personal information to the Seller. The Buyer authorises any such person to release to the Seller any personal information that person holds concerning the Buyer.
17. ARBITRATION: Any dispute whatsoever arising in respect of goods shall be referred to the sole arbitration of a suitably qualified person to be agreed by the Seller and the Buyer or failing agreement appointed by the President for the time being of the New Zealand Law Society. Such arbitration shall be conducted in accordance with the provisions of the Arbitration Act 1996 or any statutory re enactment, modification or amendment thereto for the time being in force.
