Terms & Conditions of Trade: Roof Wellington Ltd

1) Defined Terms “Goods” means all Goods supplied from time to time by us to you
and (unless the context otherwise requires) includes all proceeds of such Goods,
provided that: (a) where the Goods supplied are your Inventory, then all
references to Goods in these Terms shall, in respect of those Goods, be read as
references to Inventory; and
(b) where the Goods supplied are not Inventory then all references to Goods in
these Terms shall, in respect of those Goods, 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 order form,
packing slip or invoice (or its equivalent) shall be deemed to be incorporated in,
and form part of, these Terms. Roof Wellington Ltd (“The Vendor”, “our”, “us”
etc) “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). 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: Any Goods or Services supplied to you shall be subject to
these Terms unless we agree in writing to change them. If you accept Goods or
Services from us, 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.
3) Acceptance: Each and any order shall constitute acceptance by the Customer of
these Terms and Conditions of Trade.
4) Price: 1.1 The price for Goods and Services will be either as quoted to you in
writing or, if no written quote is provided, at our standard charges applying at the
time. Unless otherwise agreed in writing any quoted price may be altered prior to
delivery of Goods or provision of Services to you, if our costs fluctuate materially.
We may withdraw any quotation before it is accepted, and in any event any
quotation will lapse without notice 30 days after it is given.1.2 Unless otherwise
agreed in writing all freight, insurance and delivery charges will be additional to
any price quoted.
5) Payment: 1.1 Payment for Goods and Services is due 7 days from invoice or
completion of work. Payments will not be credited until cleared.1.2 If full payment
for the Goods or Services is not made on the due date, then without prejudice to
any other remedies available to us: (a) we may cancel or withhold supply of
further Goods or Services; (b) interest on monies overdue shall be charged on a
monthly basis and be calculated on a daily basis at a rate of 2.5% per month
during such default, and interest shall continue to accrue both before and after
judgment; and (c) you shall be responsible for all legal and collection costs
incurred by us in recovering such monies. (d) An administration fee may be
charged on any overdue amounts 1.3 We may from time to time vary your credit
limit with us at our discretion, in relation to further purchases of Goods or
Services. If any purchase would be in excess of your credit limit, we reserve the
right to require, prior to delivery of the Goods or Services, payment in cash of the
amount by which the cost exceeds your credit limit. Before supplying you with
Goods or Services, we may at our discretion require all or any of the following:
(a) payment in advance; (b) a guarantee of payment; (c) a deposit of up to 50%;
(d) progress payment; 1.4 We may set off against any monies owed by us to you
any monies which you owe to us or any of our subsidiaries, related companies or
shareholders so that our obligation to you shall be to pay the net balance only.
1.5 If any of our subsidiaries, related companies or shareholders owe monies to
you then they may set off against those monies any monies owed by you to us in
respect of any Goods or Services. They will only be liable to pay the net balance
owing. You agree that this provision is made for the benefit of our subsidiaries,
related companies and shareholders and may be enforced directly by them in
their own respective names. 1.6 Your obligation under these Terms shall be to
pay the full amount owing under these Terms free of all deductions or rights of
set off.
6) Events of Default: In the event that: 1.1 any money payable to the Vendor
becomes overdue, or in the Vendor's opinion the Customer will be unable to
meet its payments as they fall due; or 1.2 the Customer becomes insolvent,
convenes a meeting with its creditors or proposes or enters into an arrangement
with creditors, or makes an assignment for the benefit of its creditors; or 1.3 a
receiver, manager, liquidator (provisional or otherwise) or similar person is
appointed in respect of the Customer or any asset of the Customer; then without
prejudice to the Vendor's other remedies at law 1.4 the Vendor shall be entitled
to cancel all or any part of any order of the Customer which remains
unperformed in addition to, and without prejudice to any other remedies; and all
amounts owing to the Vendor shall, whether or not due for payment, immediately
become payable.
7) Quotation: Where a quotation is given by the Vendor for the supply of Goods and
Services: A: unless otherwise agreed the quotation shall be valid for thirty (30)
days from the date of issue; B: the quotation shall be exclusive of Goods and
Services Tax unless specifically stated to the contrary; C: the Vendor reserves
the right to alter the quotation because of circumstances beyond its control; D:
the Customer or the Vendor requests a variation to the original quote.
8) Errors or Omissions: Any clerical errors that may have been over-sighted may be
subject to correction by the Vendor whether in a quotation; invoice; or any
correspondence.
9) Ownership of Goods and rights of entry to repossess: In the Event of non
payment by the Customer, any Goods supplied by the Vendor to the Customer
shall remain the Vendors property. Whilst Vendors Goods are in your
possession, you shall: 1.1 not attempt to sell, assign, mortgage, sublet lend any
of the Goods or any part thereof. 1.2 not alter or make any additions to the
Goods, including, but without limitation, alter; make any additions to, deface or
erase any identifying mark, plate or number, on or in the Goods of any other part
of the Goods or in any other manner. The Vendors Terms of Trade
1.3 irrevocably permits us (or our agents) at any time without notice to enter all
premises at which we believe on reasonable grounds the Goods to be stored, to
inspect, remove, or repossess the Goods supplied by the Vendor. 1.4 The
Vendor takes no responsibility or liability for any damage caused in the collection
of such Goods either by the Vendor or any third party. 1.5 The Vendor may sell
any Goods repossessed to offset any monies owed by the customer. 1.6 The
Customer shall be liable for any costs incurred by the Vendor in the process of
recovery of any Goods.
10) Risk and Delivery: 1.1 If we are delivering the Goods to you, we will use
reasonable endeavours to see that deliveries are made according to schedule,
but shall not be responsible for delivery delays due to causes beyond our control
and you agree to accept delivery as soon as the Goods are able to be delivered.
1.2 Risk in respect of the Goods sold shall pass to you when the Goods are
delivered to you. 1.3 Risk in the customers Goods in our possession, for
including but not limited to, servicing, inspection, repair remains with the
customer. It is the customer’s responsibility to insure your Goods, even if we
have arranged transportation of the Goods. 1.4 If you fail to pick up or to accept
delivery of the Goods ordered, or request a delay in delivery, you shall pay us
reasonable storage charges until such time as delivery is made. You shall also
pay for the Goods in full as if the Goods had been delivered. 1.5 We shall be
entitled to make delivery by instalment and each delivery shall be deemed to be
a separate contract and the unit price in respect of Goods delivered shall fall due
for payment in accordance with clause 4. (Price)
11) Warranties: 1.1 Except to the extent of written warranties given by us to you, all
warranties and representations including those expressed or implied by law, in
respect of Goods sold or Services supplied are excluded to the extent permitted
by law. Where applicable, manufacturer’s warranties will apply. 1.2 We shall not
be liable: (a) where you have altered or modified the Goods, miss-applied the
Goods, or have subjected them to any unusual or non-recommended use,
servicing or handling; (b) for loss caused by any factors beyond our control; (c)
for any indirect or consequential loss of any kind; (d) for any second hand Goods;
(c) where the terms of any written warranty have not been complied with, or any
manufacturers’ handbook provided to you has not been complied with; (d) for
normal wear and tear; 1.3 Our total liability under any warranty for defective or
damaged Goods supplied by us or in relation to the provision of Services is
limited at our option to either: (a) replacing or repairing the defective or damaged
Goods; or (b) refunding the price of the defective or damaged Goods or provision
of service. (c) where the Consumer Guarantees Act 1993 applies the Customer
shall have all the rights and remedies provided under this Act but no others. The
Customer warrants to the Vendor that any Goods and Services supplied by the
Vendor under any order with the Vendor are being acquired by the Customer for
the purpose of its business and the Consumer Guarantees Act 1993 does not
apply to the supply of those Goods and Services. (d) where Goods supplied are
defective in terms of any condition warranty or guarantee or otherwise do not
conform to the Order, the Vendor will at its discretion replace or repair any faulty
Goods or pay the cost of replacing them, but only if a claim is made by the
Customer within seven days of delivery of the Goods or Service time being of the
essence
12) Liability: 1.1 Notwithstanding anything else in any agreement, the liability of
the Vendor, arising from breach of any of the Vendor's obligations under
any agreement, from any cancellation of any agreement or from any
negligence on the part of the Vendor, its servants, agents or contractors,
shall be limited to damages which shall not in total exceed the agreement
price. 1.2 The Vendor shall not be liable for any loss of any kind
whatsoever suffered by the Customer as a result of any breach of any of
the Vendor's obligations under any agreement, including any cancellation
of any agreement or any negligence on the part of the Vendor, its servants.
agents or contractors, nor shall the Vendor be liable for any loss, damage
or injury caused to the Customer's servants, agents, contractors, buyers,
visitors, tenants, trespassers or other persons. The Customer shall
indemnify the Vendor against any claim by any such person. 1.3 No
liquidated damages are payable unless specifically agreed by us in writing.
13) Construction Contracts Act: The Customer hereby expressly acknowledges
that: 1; The Vendor has the right to suspend work within five (5) working days of
written notice of his intent to do so if a payment claim is served on the Customer,
and: 2; the payment is not paid in full by the due date for payment and no
payment schedule has been given by the Customer; or 3; a scheduled amount
stated in a payment schedule issued by the Customer in relation to the payment
claim is not paid in full by the due date for its payment; or 4; the Customer has
not complied with an adjudicator’s notice that the Customer must pay an amount
to The Vendor by a particular date; and: 5; the Vendor has given written notice to
the Customer of his intention to suspend the carrying out of construction work
under the construction contract. If The Vendor suspends work, he: a; is not in
breach of contract; and b; is not liable for any loss or damage whatsoever
suffered, or alleged to be suffered, by the Customer or by any person claiming
through the Customer; and c; is entitled to an extension of time to complete the
contract; and d; Keeps his rights under the contract including the right to
terminate the contract; and may at any time lift the suspension, even if the
amount has not been paid or an adjudicator’s determination has not been
complied with. 6; if the Vendor exercises the right to suspend work, the exercise
of that right does not: a; affect any rights that would otherwise have been
available to the Vendor under the Contractual Remedies Act 1979; or: b; Enable
the customer to exercise any rights that may otherwise have been available to
the customer under the Act as a direct consequence of the Vendor suspending
work under this provision.
14) Access for Installation and Provision of Services: 1.1 The Customer
acknowledges that it solely shall be responsible for arranging and providing
convenient access for the Goods and provision of Services to the proposed
place of installation 1.2 If the Customer fails to supply convenient access as
aforesaid for any reason then the Vendor may make a further charge to the
Customer to cover the additional costs it incurs arising from such failure as the
Vendor considers reasonable. 1.3 If the Customer is not in a position to accept
or take delivery of the Goods or accept provision of the Services as scheduled
the Customer shall be responsible for all additional charges caused thereby.
1.4. Where installation or supply of the Goods or provision of the Services is
required of the Vendor by the Customer and installation or supply is required to
be coordinated with other trades the Customer shall provide the Vendor with a
schedule detailing all relevant information relating to installation or supply with
sufficient time allowed for the Vendor to meet delivery or supply dates. 1.5. The
delivery or supply period shall be extended to cover delays caused by strikes,
lockouts, prohibitions, non-availability of materials or any circumstances
beyond the Vendor's control. 1.6. Where you grant access to us over your
property for the purposes of our providing Goods or Services to you, you shall
ensure compliance with all legislation and regulations in relation to the property,
including ensuring the property is in a safe state for us to undertake any
necessary work. 1.7. If we have any concerns regarding the safety of our
employees or contractors, in relation to the access and use of your property, we
shall be entitled to halt all work on your property, until such time as our safety
concerns have been resolved. In that case you shall be responsible for payment
of work undertaken by us to that point.
15) Return of Goods: The customer shall not be entitled to return any good under
these terms and conditions.
16) Mediation: If at any time any question, dispute or difference whatsoever shall
arise between the Customer and us, in relation, or in connection with any
contract arising from this quotation either party may give to the other notice in
writing within seven days of the existence of such question, dispute or difference
and in the first instance the parties shall confer at least once to resolve the
dispute or to agree on methods of doing so. At such time a representative with
the authority to agree the matter shall be present. Failing agreement, the same
shall thereupon be referred to the arbitration in New Zealand of a person to be
mutually agreed upon. The submission shall be deemed to be a submission to
arbitration within the meaning of the terms of Arbitration Laws in force in New
Zealand
17) Cancellation: 1.1 Cancellation by you: You may not cancel any order for Goods or
Services 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 and charge you for
any costs incurred to date. 1.2 Cancellation by us: We shall be entitled without
liability to you to cancel an order or delivery of an order or refuse and order if: (a)
you become insolvent, enter into a scheme of arrangement with creditors (other
than with our consent) or you cease or threaten to cease to carry on all or a
material part of your business, or have a receiver appointed in respect of any or
all of your assets or other steps are taken for your dissolution; (b) you or we are
refused any licences, consents or permits in respect of the Goods or Services;
(c) An extraordinary event occurring or a material change affecting the affairs or
the financial condition of the purchaser, which gives the vendor reasonable
grounds to conclude that the purchaser may not, or may be unable to, perform or
observe its obligations under the contract; or (d) you breach any term of these
Terms.
18) Waiver or variation: Waiver or variation of these Terms by us will only be
effective if given in writing by an authorized member of our staff. If we waive any
of these Terms the waiver will not affect our rights under these Terms at any
future time.
19) Severability: Each clause in these Terms is severable and if any clause is held
to be illegal or unenforceable then the remaining clauses will remain in full force
and effect.
20) Governing law: The Contract and these Terms will be interpreted in accordance
with and governed by the laws of New Zealand and the New Zealand courts will
have non-exclusive jurisdiction in respect of all matters between us.
21) PPSA 1999 and as amended: 1.1 Security: You acknowledge and agree that:(a)
by assenting to these Terms, you grant a security interest (by virtue of the
retention of title clause in clause 5 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 (b) these Terms shall apply notwithstanding anything,
express or implied, to the contrary contained in your purchase order. 1.2
Financing Statement: You undertake to: (a) 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; (b) not register a financing change
statement or a change demand in respect of the Goods (as those terms are
defined in the PPSA) without our prior written consent; and (c) give us not less
than 14 days prior written notice of any proposed change in your name and/or
any other change in your details (including, but not limited to, changes in your
address, facsimile number, trading name or business practice).1.3 Waiver You
waive your right to receive a verification statement in respect of any financing
statement or financing change statement relating to the security interest.
1.4 Contracting out (a) You agree that nothing in sections 114(1)(a), 133 and 134
of the PPSA shall apply to these Terms and, with our agreement, contract out of
such sections. (b) To the maximum extent permitted by law you waive your rights
and contract out of your rights under the sections referred to in section 107(2)(to
(e) and (g) to (i) of the PPSA.
22) Notices: Any notice to be given to the customer shall be deemed to be given 48
hours after it being posted by ordinary post or immediately if sent by email, fax or
telegram to the physical address, email address or appropriate facsimile number
of the customer set out in the contract or to the customer’s registered office or to
the customer’s last known address.
23) Indemnity: The customer shall comply with all instructions of the vendor in relation
to the handling, fitting and installation and use of the equipment and
notwithstanding such compliance the customer shall keep the vendor indemnified
against all costs, claims, demand expenses and liabilities of whatsoever nature,
including without prejudice to the generality of the foregoing, claims for death,
personal injury, damage to property and consequential loss (including loss of
profits) which may be made against the vendor or which the vendor may sustain,
pay, incur as a result of or in connection with the manufacture, sale, export, import
or use of the equipment unless such cost, claim, demand, expense or liability shall
be directly and solely attributable to the negligence of the vendor or the negligence
of a duly authorised employee or agent of the vendor.
24) Merger with Other Goods: If the Goods are attached, fixed or incorporated into
any property of the Customer, by way of any manufacturing or assembly process
by the Customer or any third party, title in the products and Services shall remain
with the Vendor until the Customer has made payment for all Goods and where
those Goods are mixed with other property so as to be part of or constituent of
any new Goods title to those new Goods shall be deemed to be assigned to the
Vendor as security for the full satisfaction by the Customer of the full amount
owing by the Customer to the Vendor.
25) Health and Safety: The customer shall be responsible to ensure that applicable
health and safety regulations are observed and other appropriate steps taken in
relation to the storage, handling and use of the equipment and the health and
safety of the Vendor’s staff working on the customer’s premises.
26) Force Majeure: Neither the Vendor or the Customer shall be liable for any delay in
the production or delivery of the Goods or Services directly or indirectly caused by
force majeure which term is to include: acts of god, fire, riot, war, embargo,
strikes, labour disputes, theft, delays in delivery by sub-suppliers, prohibition of
export or import, confiscation, action or interference by any governmental or other
authority or any other occurrences (whether or not similar in nature to those
specified above) beyond our control. In such event the Vendor shall be entitled to
determine the contract on giving reasonable written notice or to make delivery of
the Goods or Services which the Customer agrees to accept whenever such
cause of delay has been remedied.
27) Privacy: Privacy: The Customer understands that any information being
collected is in accordance with the Privacy Act 1993 and that the Customer has
rights of access to and correction of personal information held by the Vendor.
The Customer agrees and authorizes the Vendor to obtain or divulge any
information about the Customer (including adverse information) from or to any
third party (including credit reporting and debt collection agencies) in the course
of our business activities including credit assessment, debt collection and direct
marketing activities. The Customer warrants that all information provided to the
Vendor has been collected in accordance with the principles of the Privacy Act
1993 and that any third party has authorised the use or disclosure of any
personal intonation in any way deemed necessary by us for the purpose of
carrying out the service requested by the third party. The Customer further
undertakes to indemnify The Vendor against any claims arising from any action
taken by itself on your behalf.
28) Electronic Communications: If the Customer has provided the Vendor with an
email address for communication purposes the Vendor will fully comply with all
requirements under the Unsolicited Electronic Messages Act 2007.
29) We reserve the right to change these terms and conditions of sale at any time
and any amendments will be forwarded to the customer.
30) Compliance with laws: The Vendor will comply with all legislation, codes and
standards specified in the Contract and the Company is under no liability as a
failure to meet any other legislation, codes or standard. If, after the Contract
date, there are any changes in any legislation, regulations or standards with
which the company must comply, then the Customer agrees to reimburse or pay
to the Vendor an amount equal to additional cost incurred by the Vendor relating
to such compliance. The Customer is responsible for any permits; regulations
required to be met; codes of compliance; by-laws or any law with regards to any
Goods or Services provided by the Vendor.
31) Assignment: The customer may not assign or transfer or purport to assign or
transfer any of its rights or obligations under or in connection with the contract to
any other person whatsoever.