CONDITIONS OF SALE
The following terms shall be incorporated into every contract between Fletcher Concrete & Infrastructure Limited (the quote Company) and the Buyer for the supply by the Company of goods or services (both of which are referred to as materials) unless specifically excluded in writing and annexed hereto. No variation of these terms will be binding upon the Company unless made in writing. In the event of inconsistency between these terms and the terms of any quotation or other agreement these terms shall take precedence.
1. REPRESENTATIONS AND WARRANTIES
(a) Any representation, undertaking or warranty made by the Company or any agent or representative of the Company unless recorded in writing and annexed hereto are of no effect and shall not apply to this contract or to any contract collateral to this contract.
(b) All warranties and conditions implied by law (including any warranties as to suitability of the materials for the use to which they will be put) are excluded from this contract and shall not apply to it.
(c) It is the Buyer's obligation to satisfy itself that materials supplied are suitable for the purpose to which the Buyer wishes to use them and the Company does not warrant that the materials are suitable for any particular purpose.
(d) The Buyer acknowledges that it has acquired the materials for the purposes of a business and that the Consumer Guarantees Act 1993 will not apply to the supply of the materials by the Company to it.
(e) Where the Company issues a producer statement in relation to materials the Company does not warrant the accuracy of the statements contained in that producer statement and that producer statement is issued subject to the limitations of liability contained in these terms.
(a) Payment is to be made in full (without set off or deduction) by the 20th of the month following delivery.
(b) Receipt of any cheque or other bill of exchange shall not comprise payment until the same has been honoured or cleared.
(c) If the Buyer fails to make payment by the due date, it shall be liable to pay to the Company by way of liquidated damages interest at a rate of 4% per annum above the current bank overdraft rate charged by the Company's bankers for the period during which it remains unpaid calculated on a daily basis. A letter or other evidence from a recognised bank carrying on business in New Zealand to the effect it is the Company's Banker and stating the current overdraft rate applicable to the Company for the relevant period shall (subject to manifest error) be conclusive evidence of that rate during that period.
(d) The Buyer must also pay any expenses including legal costs incurred by the Company as a consequence of the Buyer's default.
If the Buyer shall fail to apply any amount owing on the due date or shall commit any other default under this contract and any such default shall continue for 7 days then:
(a) All amounts payable by the Buyer shall thereupon become due and payable and the Company may enforce payment of the balance of the purchase price and interest shall be payable thereon under clause 2(c) notwithstanding that delivery of the materials has not been effected and that but for this clause payment would not then be due;
(b) The Company shall be entitled to refuse to deliver any further materials to the Buyer under this contract or any other contract until any default on the part of the Buyer is remedied;
(c) The Company may retake possession of any materials provided by it to the Buyer and for that purpose enter the premises where they may be situated;
(d) The Company may by written notice to the Buyer cancel this contract; and any rights exercised by the Company pursuant to this clause shall not terminate the Buyer's liabilities under the contract or to pay damages for any breach of it.
(a) The Company shall (unless otherwise stated) deliver the materials by a carrier of its choice to an area at or alongside the site complying with
paragraph (d) below. Where the Buyer nominates the use of other services or carriers, any additional costs arising beyond the Company's normal costs shall be borne by the Buyer.
(b) Where small consignments incur additional cost or delivery is specified to a destination other than the Buyer's quoted point of delivery, any additional freight costs shall be borne by the Buyer.
(c) Truck turn around time of 60 minutes has been allowed in this contract and any costs due to time over this period at the site shall be paid by the Buyer.
(d) The Buyer shall provide at its expense safe hard roading suitable for use by usual road transport to deliver materials to the site or to an area alongside the site with sufficient clear hard space at all times for unloading and stacking and unless otherwise specified shall supply all necessary cranes and other means of unloading. Should safe delivery not be possible through failure of the Buyer to comply with this provision, any additional expenses incurred by the Company in effecting delivery shall be paid by the Buyer.
(e) Any time or date for delivery given by the company is intended only as an estimate and the Company shall not be liable for the consequences of delay however arising and the Buyer acknowledges that the Company will not accept any liability for any claims or losses arising from its failure to meet the delivery date. Delayed delivery shall not invalidate this contract or subject the Company to any penalty and the Buyer will accept the materials when delivered and pay the price prevailing at the date of delivery notwithstanding any such delay.
(f) Where the Company is dependent upon other manufacturers or suppliers to provide materials or services, the Company is under no liability to the Buyer for the failure of the manufacturer or supplier to provide the materials.
(g) When the materials are available and due for delivery by the Company and the Buyer fails to take or accept the same when required to do so under this contract for the purpose of clause 2(a) delivery shall be deemed to have been made on the date the Company was willing and able to effect delivery.
5. OWNERSHIP AND RISK
(a) Notwithstanding that title in the materials may remain with the Company, the risk in respect of the materials shall pass to the Buyer from the time of removal from the Company's premises or deemed delivery under clause 4(g) and the Buyer must insure the materials for its and the Company's respective interests.
(b) Ownership of the materials shall not pass (and the Buyer upon receipt of the same shall be bailee only) until the Buyer has paid to the Company the purchase price and all other sums owing in respect of the materials and in respect of any other goods or services supplied to the Buyer by the Company.
(c) Until the ownership of the materials has passed to the Buyer it shall not be entitled to sell or deliver possession of the materials to others.
(d) The Buyer irrevocably authorises the Company, its agents and servants for so long as title to the materials remains with the Company, to search for and remove the materials and for that purpose to enter into any premises where they may be found using such force as is necessary. The Buyer will indemnify the Company against any cost and liabilities that may arise as a result of the entry by the Company into any premises or the seizure by the Company of any materials under this clause.
6. RETURN OF MATERIALS
(a) No claims for alleged defective materials (including damage in transit) will be recognised unless made in writing and received by the Company within seven days after delivery. The Company reserves the right to inspect the materials and to remedy defects in respect of the materials on the site, but otherwise materials accepted as defective by the Company shall be returned to the Company at the Buyer's expense, at the original point of commencement of delivery.
(b) Other than as provided in paragraph (a) above the Buyer may not return or refuse delivery of any materials purchased from the Company.
7. LIMITATION OF LIABILITY
The Company's liability under this contract or any contract collateral hereto is limited to replacing (or at the election of the Company repairing) any defective materials to the entire exclusion of any other remedy which, but for this clause, the Buyer might have and the Company shall be under no liability for any damage, injury direct or consequential or other loss or loss of profits or costs, charges and expenses on the part of the Buyer or any other person other than to repair or replace as mentioned above. The Company shall not be liable to the Buyer if for any reason beyond the Company's control it is not able to deliver or supply any of the materials.
(a) The Buyer acknowledges that it grants a security interest (as defined in the PPSA) in all present and after acquired materials as security for its obligations to the Company. The Buyer must do all things including executing all documents that the Company requires to provide the Buyer with a first ranking security interest in the materials.
(b) The Buyer waives the right to the right to receive a copy of the verification statement under the PPSA and agrees that it will have none of the rights under sections 114(1)(a), 116, 117(1)(c), 119, 120(2), 121, 125, 129, 131, 132, 133 and 134 of the PPSA. Where the Company has rights in addition to those in Part 9 of the PPSA the Buyer agrees that those rights shall continue to apply and in particular, will not be limited by section 109 of the PPSA.
(c) The Buyer agrees to indemnify the Company for any cost the Company incurs in registering, maintaining and for enforcing the security interest created by these terms (d) The Buyer must immediately notify the Company if it changes its name.
(a) The Buyer agrees that (except as provided in these terms) these terms represent the entire agreement between the Buyer and the Company.
(b) The Buyer agrees that the following terms used in these terms will have the following meanings:
(i) "Buyer" means the person named as Buyer in the attached credit application or invoice;
(ii) "materials" means all pipeline systems, plumbing and irrigation products, parts and materials supplied or to be supplied by the Company and
includes any products, parts and materials referred to in any invoice issued by the Company at any time and includes services where applicable;
(iii) “PPSA” means the Personal Property Securities Act 1999 (and where the context permits any regulations under that Act);
(iii) “security interest” has the meaning in the PPSA.