1.1 “Goods” means all goods, products and materials which are inventory supplied by the Seller to the Buyer.
1.2 “Buyer” means the company, organisation or individual set out in the attached Application for Credit.
1.3 “Seller” means New Zealand Decorative Concrete Limited.
1.4 Any order placed with the Seller shall be on the terms as set out in the within Terms of Trade.
1.5 Any additional or different terms the Buyer stipulates or states in any communication with the Seller (including an order) are hereby negated and will not bind the Seller unless the Seller agrees in writing.
2.1 Prices for Goods quoted exclude goods and services tax.
2.2 The Goods are sold subject to goods and services tax.
2.3 Unless otherwise agreed in writing prices are ex-factory and all delivery freight and other transport charges are the responsibility of the Buyer.
2.4 Prices are subject to change without prior notice.
3.1 Payment terms are as set out in the attached Application for Credit. Where no terms are specified the Buyer shall pay the purchase price for the Goods to the Seller by the 20th of the month following the date of the invoice.
3.2 Unless otherwise agreed in writing, payment will be in cash, cheque, credit card, direct credit or direct debit.
3.3 If any account is in dispute, the undisputed portion of the account shall be payable in accordance with clause 3.1.
3.4 The Seller may charge interest on overdue accounts at such rate as may be determined by the Seller from time to time.
3.5 The Seller reserves the right to suspend delivery of further Goods if the terms of payment are not strictly adhered to by the Buyer.
3.6 If the Seller incurs any expenses in recovering any monies due from the Buyer, the Buyer shall, on demand, pay those expenses.
4.1 The Seller shall deliver the Goods to the Buyer’s address stated as the Delivery Address in the attached Application for Credit Account.
4.2 The Seller shall deliver the Goods by such means as the Seller reasonably considers appropriate.
4.3 The Seller is not responsible for:
(a) any part delivery or delay in delivery of the Goods as a result of events beyond the Seller’s reasonable control; or
(b) any consequences (direct or indirect) arising from such part-delivery, delay or non-delivery.
4.4 The Goods are deemed to have been delivered when the Buyer acknowledges delivery by signing the delivery docket or other equivalent document.
4.5 Upon delivery to the Buyer, risk in the Goods passes to the Buyer.
4.6 Goods may be delivered in installments.
5.1 For the purpose of this clause, words and phrases starting with a capital letter (other than Goods) shall have the respective meaning given to them under, or in the context of, the Personal Property Securities Act 1999 (“PPSA”).
5.2 The Buyer grants to the Seller a Security Interest in the Goods and their Proceeds to secure the Buyer’s obligation to pay the purchase price of the Goods and any other outstanding amount the Buyer owes to the Seller.
5.3 The Security Interest created by this clause 5 in the Goods extends to the Buyers present and after acquired Goods.
5.4 Upon the Seller’s written request, the Buyer shall, at its own expense, provide all reasonable assistance and relevant information to enable the Seller to register a Financing Statement or Financing Change Statement and generally to obtain, maintain, register and enforce the Seller’s Security Interest in respect of the Goods, in accordance with the PPSA.
5.5 The Buyer shall not change its name without first notifying the Seller of the new name not less than seven days before the change takes effect.
5.6 Until the Buyer has paid all money owing to the Seller, the Buyer shall at all times ensure that:
(a) the Goods, while in the Buyer’s possession, can be readily identified and distinguished from other items; and
(b) all Proceeds (in whatever form) that the Buyer receives from the sale of the Goods can be identified and distinguished from other moneys.
5.7 Where the Buyer has purchased the Goods as Inventory, nothing in this clause 5 shall prevent the Buyer from selling the Goods in the ordinary course of the Buyer’s business. Otherwise, until the Buyer has paid all money owing to the Seller, the Buyer shall not grant a Security Interest in the Goods without the Seller’s written consent.
5.8 Notwithstanding any reference to a particular invoice/order, where any money remains outstanding by the Buyer on more than one invoice/order, any payments received from the Buyer shall be deemed to be made by the Buyer and applied by the Seller in respect of each unpaid invoice/order on a pro rate basis PROVIDED THAT where the Seller applies payment in this manner it shall not charge interest on overdue balances that would have been cleared if the payments were not allocated pro rata.
5.9 The Buyer waives its right to receive a Verification Statement in respect of any Financing Statement or Financing Change Statement registered in respect of the Security Interest created by these Terms of Trade.
5.10 To the extent permitted by law and in respect of this document and the Security Interest created pursuant to these Terms of Trade:
(a) the Seller and the Buyer contract out of the sections 114(1)(a), 133 and 134 of the PPSA; and
(b) the Seller and the Buyer contract out of the Buyer’s rights to (and the Buyer waives its rights to):
(i) receive notice of the Seller’s proposal to retain the Goods under section 120(2) of the PPSA;
(ii) object to the Seller’s proposal to retain any of the Goods under section 121 of the PPSA;
(iii) not have goods damaged when the Seller (or any person on its behalf) removes an accession under section 125 of the PPSA;
(iv) receive notice of the removal of an accession under section 129 of the PPSA;
(v) apply to the Court for an order concerning the removal of an accession under section 131 of the PPSA; and
(vi) redeem the Goods under section 132 of the PPSA.
5.11 When the Seller has rights in addition to, or existing separately from, those in Part 9 of the PPSA, those rights will continue to apply and are not limited or excluded (or otherwise adversely affected) by any right provided by these Terms of Trade or by law and, in particular, will not be limited by section 109 of the PPSA.
6.1 The Buyer warrants that the Goods are purchased for the purposes of the Buyer’s business and confirms that the Consumer Guarantees Act 1993 does not apply to the Goods.
6.2 If the Buyer supplies the Goods in trade to a person acquiring them for business purposes, it must be a term of the Buyer’s contract for any such re-sale that the Consumer Guarantees Act 1993 does not apply in respect of the Goods.
6.3 The Buyer acknowledges that the Goods are covered by the manufacturer’s warranty only.
6.4 The Buyer may only return the Goods if:
(a) incorrect Goods have been delivered; or
(b) incorrect quantities of Goods have been delivered; or
(c) the Goods are damaged or defective; and
the Goods are in the same condition and packaging as when delivery occurred.
6.5 If the Buyer intends to return the Goods pursuant to clause 6.4, the Buyer must first notify the Seller within 24 hours of delivery. The Buyer will arrange the return carriage of the Goods to the Seller at the Buyer’s expense.
6.6 If the Buyer returns the Goods pursuant to clause 6.4, it is at the Seller’s discretion whether to repair, replace or refund the price.
6.7 The Seller will not repair or replace, or refund the price of any Goods for so long as the Buyer is in default in relation to any amount owing under its account with the Seller.
6.8 The Seller is not liable for any claim by the Buyer, including without limitation any claim relating to or arising from:
(a) any conditions, warranties, descriptions, representations, conditions as to fitness or suitability for any purpose, tolerance to any conditions, merchantability or otherwise, whether express or implied by law, trade custom or otherwise; or
(b) any representations, warranties, conditions or agreement made by any agent or representative which are not expressly confirmed by the Seller in writing; and the Buyer agrees to indemnify the Seller against such claims.
6.9 In any event, the Seller’s liability under any claim shall not exceed the price of the Goods.
6.10 Nothing in these Terms of Trade is intended to have the effect of contracting out of the provisions of the Consumer Guarantees Act 1993 except to the extent permitted by that Act, and these terms are to be modified to the extent necessary to give effect to that intention.
7.1 If the Buyer does not comply with these Terms of Trade, the Seller may suspend delivery of further Goods.
(a) the Buyer:
(i) defaults in the payment of any amount due;
(ii) fails to make any payment due under the invoice;
(iii) commits any breach of any of the Buyer’s obligations under the Terms of Trade;
(iv) suffers execution under any judgment;
(v) commit an act of bankruptcy;
(vi) makes any composition or arrangement with any creditor;
(vii) being a Company, passes a resolution for winding up or has a receiver appointed over any of its property or has a winding up petition presented against it;
(b) the Goods are “at risk” within the meaning of the PPSA
the Seller will be entitled to repossess the Goods and where reasonably necessary for such purpose, may enter any premises where the Goods may reasonably be expected to be held.
7.3 The Buyer will be liable to pay on demand all costs and expenses incurred by the Seller in connection with the enforcement or attempted enforcement of these Terms of Trade including but without limitation, losses, costs and expenses sustained as a result of any default by the Buyer in the performance of any of the Buyer’s obligations under these Terms of Trade.
8.1 In consideration of the Seller entering into these Terms of Trade at the Guarantor’s request, the Guarantor guarantees to the Seller payment of the Buyer’s account with the Seller and the performance by the Buyer of its obligations to the Seller arising under these Terms of Trade.
8.2 The Guarantor covenants with the Seller that no release, delay or other indulgence given by the Seller to the Buyer whereby the Guarantor would have been released had the Guarantor been merely a surety shall release, prejudice or affect the liability of the Guarantor as a guarantor.
8.3 As between the Guarantor and the Seller the Guarantor may for all purposes be treated as the Buyer and the Seller shall be under no obligation to take proceedings against the Buyer before taking proceedings against the Guarantor.
8.4 Should there be more than one Guarantor their liability under these Terms of Trade shall be joint and several.
9.1 The Seller’s obligation to supply is subject at all times to the availability of the Goods.
10.1 These Terms of Trade are governed by and construed in accordance with the laws of New Zealand for the time being in force, and the parties agree to submit to the non-exclusive jurisdiction of the courts of New Zealand.
11.1 The Seller reserves the right to change these Terms of Trade at any time. The Seller will inform the Buyer of any change by giving the Buyer notice of the change 15 days prior to the change becoming effective. If, after the expiration of the period of 15 days, the Buyer continues its relationship with the Seller relying on these Terms of Trade then the Buyer shall be deemed to have agreed to the change.
12.1 If at any time during or after the expiry of these Terms of Trade either the Seller or the Buyer (“the Parties) alleges by written notice that a dispute has arisen out of or in relation to these Terms of Trade the Parties shall negotiate in good faith in an attempt to resolve the matter.
12.2 If the Parties have not been able to reach a settlement within 14 days then either Party may thereafter by written notice to the other Party refer the dispute for resolution in accordance with this clause.
12.3 The matter shall first be referred to a mediator. If the Parties are unable within 14 days of receipt of the notice of referral to agree upon a mediator, then either may request the President of the Arbitrators and Mediators Institute of New Zealand to appoint one for them.
12.4 Following the appointment of a mediator the Parties shall continue to attempt to resolve the dispute with the mediator's assistance, If after 21 days no Agreement has been reached then either Party may thereafter by written notice refer the dispute to Arbitration. Each Party shall pay a one half share (or any other agreed proportion) of the mediator's costs and disbursements,
2.5 The arbitration shall be carried out in accordance with the provisions of the Arbitration Act 1996, in New Plymouth before an arbitrator appointed by the President for the time being of the Taranaki District Law Society. Any award by such arbitrator shall be in writing and shall, as part of that award, set out the reasons for the arbitrator's decision.
13.1 The Buyer authorises the Seller to collect, retain, and use personal information about the Buyer (including information collected in this document) for the following purposes only:
(a) assessing the Buyer’s creditworthiness
(b) disclosing to a third party details of this application and any subsequent dealing it may have with the Seller for the purpose of recovering amounts payable by the Buyer and providing credit references.
(c) marketing goods provided by the Seller to the Buyer.
13.2 The Buyer, if an individual has a right of access to information about the Buyer held by the Seller. The Buyer may request correction of that information and may require that the request be stored with that information. The Seller may charge reasonable costs for providing access to that information.