TERMS AND CONDITIONS OF TRADE
NZ Timber Profiles Limited trading as The Timber Profile Co.
1.0 DEFINITIONS
1.1 Hereafter, “NZ Timber Profiles Limited trading as The Timber Profile Co.” shall be referred to as “the Company”.
1.2 “Customer” shall mean the customer, any person acting on behalf of and with the authority of the customer, or any person purchasing Goods from the Company.
1.3 “Goods” shall mean goods, chattels or services provided by the Company to the Customer.
1.4 “Price” shall mean the cost of the Goods as agreed between the Company and the Customer, subject to clause 3 of this contract.
2.0 ACCEPTANCE
2.1 Any instructions received by the Company from the Customer for the supply of Goods shall constitute acceptance of the terms and conditions contained herein.
3.0 PRICE
3.1 Where no price is stated in writing or agreed orally, the Goods shall be deemed to be sold at the price at which such Goods are sold by the Company at the time of the contract.
3.2 The Price may be increased by the amount of any reasonable increase in the cost of supply of the Goods that is beyond the control of the Company between the date of the contract and delivery of the Goods.
4.0 PAYMENT
4.1 Except where otherwise agreed in writing, payment for Goods shall be made in full without deduction on or before the 20th day of the month following the date of invoice (“the due date”).
4.2 Interest may be charged on any amount owing after the due date at the rate of 2.5% per month or part of a month.
4.3 Any expenses, disbursements and legal costs incurred by the Company in the enforcement of any rights contained in this contract shall be paid by the Customer, including any reasonable solicitor’s fees or debt collection agency fees.
4.4 Receipt of a cheque, bill of exchange or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
5.0 QUOTATION
5.1 Where a quotation is given by the Company for Goods:
5.1.1 Unless otherwise stated, the quotation shall be valid for one month from the date of issue;
5.1.2 The quotation shall be exclusive of Goods and Services Tax unless specifically stated to the contrary.
5.2 Where Goods are required in addition to the quotation, the Customer agrees to pay the additional cost of such Goods.
6.0 DELIVERY
6.1 The Customer shall inspect the Goods immediately upon delivery and shall give notice to the Company of any Goods that are damaged, defective, short delivered or otherwise not in accordance with the order before signing the delivery slip or within seventy-two (72) hours.
6.2 The Customer shall be deemed to have accepted the Goods unless the Customer notifies the Company otherwise within 72 hours of delivery of the Goods to the Customer. No claim whatsoever, whether in respect of the Goods, consequential loss or damage or otherwise howsoever, shall be made against the Company thereafter. A delivery slip signed as aforesaid shall be valid for all purposes whether signed by the Customer personally or by any partner, spouse, director, shareholder, secretary, agent, employee, subcontractor or client representative of the Customer.
7.0 RISK
7.1 The Goods remain at the Company’s risk until delivery to the Customer, but when title passes to the Customer pursuant to clause 9.1 of this contract, the Goods are at the Customer’s risk whether delivery has been made or not.
7.2 Delivery of Goods shall be deemed to occur when the Company gives possession of the Goods for delivery to the Customer, or possession of the Goods is given to a common carrier or other bailee for the purposes of transmission to the Customer.
7.3 The time agreed for delivery shall not be an essential term of this contract unless the Customer gives written notice to the Company making time of the essence.
7.4 Where the Company delivers Goods to the Customer by instalments and the Company fails to deliver one or more instalments, the Customer shall not have the right to claim compensation as though the failure were a breach of the entire contract.
8.0 AGENCY
8.1 The Customer authorises the Company to contract either as principal or agent for the provision of Goods that are the subject matter of this contract.
8.2 Where the Company enters into a contract of the type referred to in clause 8.1, it shall be read with and form part of this agreement and the Customer agrees to pay any amounts due under that contract.
9.0 TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999)
9.1 If the Goods are ascertained and in a deliverable state, title in the Goods passes to the Customer when the Customer has made payment for all Goods supplied by the Company.
9.2 Where the Customer has not paid for any Goods in its possession, property in such Goods shall remain with the Company.
9.2.1 The Goods shall be held by the Customer as bailee; and
9.2.2 If the Goods are attached, fixed or incorporated into any property of the Customer or any third party, by way of any manufacturing or assembly process by the Customer or any third party, title to the Goods shall remain with the Company until the Customer has made payment for all Goods. Where those Goods are mixed with other property so as to be part of or a constituent of any new goods, title to those new goods shall be deemed to be assigned to the Company as security for the full satisfaction by the Customer of the full amount owing between the Company and the Customer.
9.3 The Customer gives irrevocable authority to the Company to enter any premises, at any reasonable time, to remove any Goods not paid for in full by the Customer. In exercising its rights of repossession, the Company may remove the Goods by unscrewing, disconnecting or severing any means of affixing, without the Company being liable for costs, damages, expenses or any other losses incurred by the Customer or any third party as a result of this action, nor liable in contract, tort or otherwise in any way whatsoever.
9.4 If the Customer resells the Goods before ownership passes, the Customer shall hold the proceeds of sale and any accounts receivable arising from the sale on trust for the Company, and such proceeds shall be deemed to be subject to the security interest granted to the Company.
9.5 The Customer grants to the Company a security interest in all Goods supplied (whether now or in the future) and in the proceeds of those Goods, as security for payment of all amounts owing and performance of all obligations owed by the Customer to the Company.
9.6 This agreement constitutes a security agreement for the purposes of the Personal Property Securities Act 1999 (PPSA), and the Company may register its security interest on the Personal Property Securities Register (PPSR).
9.7 The Customer waives any right to receive a copy of a verification statement confirming registration of a financing statement relating to the Company’s security interest.
10.0 RETURN OF GOODS
10.1 Unused Goods may be accepted for return with prior written authorisation from the Company.
10.2 The Company will not accept any freight or delivery costs incurred by the Customer due to the return of unused Goods.
10.3 The Company will only consider accepting the return of Goods provided:
10.3.1 Prior approval is obtained;
10.3.2 The Goods are stock items and not a custom run;
10.3.3 The Goods are uncut, in resaleable condition and have not deteriorated; and
10.3.4 The Customer pays a restocking fee of 15% of the Price in respect of any Goods returned.
11.0 LIABILITY
11.1 The Consumer Guarantees Act 1993, the Commerce Act 1986, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon the Company which cannot by law, or which can only to a limited extent by law, be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on the Company, the Company’s liability shall, where allowed, be excluded or, if unable to be excluded, only apply to the minimum extent required by the relevant statute.
11.2 Except as otherwise provided by clause 11.1, the Company shall not be liable for:
11.2.1 Any loss or damage of any kind whatsoever, whether suffered or incurred by the Customer or another person, whether such loss or damage arises directly or indirectly from Goods, services or advice provided by the Company to the Customer. Without limiting the generality of the foregoing, the Company shall not be liable for any consequential loss or damage of any kind, including without limitation any financial loss; and
11.2.2 Except as provided in this contract, the Company shall not be liable in contract, tort or otherwise for any loss, damage or injury beyond the value of the Goods provided by the Company to the Customer; and
11.2.3 The Customer shall indemnify the Company against all claims of any kind whatsoever, however caused or arising, and without limiting the generality of the foregoing, whether caused or arising as a result of the negligence of the Company or otherwise, brought by any person in connection with any matter, act, omission or error by the Company, its agents or employees, in connection with the Goods.
12.0 CONSUMER GUARANTEES ACT
12.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires Goods or services from the Company for the purpose of a business in terms of sections 2 and 43 of the Act.
13.0 WARRANTY
13.1 Any written warranty provided by the Company also forms part of this contract.
14.0 CANCELLATION
14.1 The Company shall, without any liability and without prejudice to any other right it has in law or equity, have the right by notice to suspend or cancel, in whole or in part, any contract for the supply of Goods to the Customer if the Customer fails to pay any money owing after the due date or is adjudicated bankrupt or otherwise becomes insolvent under the Insolvency Act 2006.
14.2 Any cancellation or suspension under clause 14.1 of this agreement shall not affect the Company’s claim for money due at the time of cancellation or suspension, for damages for any breach of any terms of this contract, or the Customer’s obligations to the Company under this contract.
15.0 MISCELLANEOUS
15.1 The Customer shall not assign all or any of its rights or obligations under this contract without the written consent of the Company.
15.2 The Company shall not be liable for delay or failure to perform its obligations if the cause of delay or failure is beyond its control.
15.3 Failure by the Company to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations the Company has under this contract.
15.4 The law of New Zealand shall apply to this contract except to the extent expressly negated or varied by this contract.
15.5 Where the terms of this contract are at variance with the order or instruction from the Customer, this contract shall prevail.
15.6 Any personal guarantee made by any third party shall not exclude the Customer in any way whatsoever from the liabilities and obligations contained in this contract. The guarantors and Customer shall be jointly and severally liable under the terms and conditions of this contract.
15.7 If any provision of this contract shall be invalid, void, illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
16.0 PRIVACY
16.1 The Company collects, uses, stores and discloses personal information in accordance with the Privacy Act 2020 and its Privacy Policy, which is available on the Company’s website.
16.2 By placing an order or applying for a credit account, the Customer authorises the Company to collect, retain and use personal information for the purposes of assessing the Customer’s creditworthiness, processing orders and supplying Goods, administering the Customer’s account, enforcing the Company’s rights under this contract, and providing information about the Company’s products and services where permitted by law.
16.3 The Customer authorises the Company to obtain and exchange information with credit reporting agencies, trade referees, credit providers and other relevant parties for the purposes of assessing credit, managing the Customer’s account and recovering amounts owing.
16.4 The Customer may request access to, or correction of, their personal information in accordance with the Privacy Act 2020 and the Company’s Privacy Policy.
17.0 ELECTRONIC COMMUNICATIONS
17.1 The Customer agrees that the Company may provide quotations, order confirmations, invoices, statements, notices and other communications relating to the supply of Goods electronically, including by email or other agreed electronic means.
17.2 Electronic communications sent to the Customer’s nominated email address will be deemed to have been received on the day they are transmitted, unless the Company receives notification that delivery has failed.
18.0 PERSONAL GUARANTEE
In consideration of NZ Timber Profiles Limited trading as The Timber Profile Co. (“the Company”) agreeing to supply Goods and/or services on credit to the Customer, the Guarantor(s) whose signature(s) appear below:
18.1 Guarantee and Indemnity
The Guarantor(s) unconditionally and irrevocably guarantee to the Company the due and punctual payment of all amounts owed by the Customer to the Company, whether now or in the future, and agree to indemnify the Company against any loss, damage, costs or expenses arising from any failure by the Customer to meet its obligations.
18.2 Continuing Guarantee
This guarantee is a continuing guarantee and will remain in force until all amounts owing to the Company are paid in full, despite any settlement, intervening payment or change in the Customer’s financial arrangements.
18.3 Company’s Rights
The Company may, at any time and without notice to the Guarantor(s), vary the Customer’s terms of credit, release or extend time to the Customer or any Guarantor, without affecting the liability of the Guarantor(s).
18.4 Joint and Several Liability
Where more than one Guarantor has signed this guarantee, the obligations of the Guarantors are joint and several.
18.5 Independent Advice
The Guarantor(s) acknowledge that they have had the opportunity to seek independent legal advice before signing this guarantee.