The Buyer and the Company shall acknowledge that these Terms of Trade
constitute a Security Agreement as defined by the Personal Property Securities
Act 1999 (“PPSA”). For the purposes of the PPSA, Collateral shall include all
Goods supplied by the Company and the proceeds from the sale of all Goods. The
Buyer shall also agree not to allow any person to file a finance statement over
any of the Collateral secured by this Security Agreement without the prior
written consent of the Company.
These terms of Contract between R & R
QUALITY PRODUCTS LIMITED, trading as ‘Noticeboard Products”, (the
"Company") and the Buyer (the "Buyer") shall apply to all
orders for notice boards and memo boards and related products (“Goods”)
accepted by the Company from the Buyer and that these terms and conditions
shall prevail and take precedence over any document or oral message from the
Buyer. Where the Company fails to enforce any terms or conditions under this
Contract the Company will not be deemed to have waived these rights with
respect to any term or condition or right.
Quotation and Price
The Company shall confirm the price of Goods in its price list or as a
quotation and the Buyer shall confirm acceptance by signing the quotation or
providing an order.
Where the Company confirms its price by quotation no quotation shall
constitute an offer unless signed by the Company and the Company may withdraw
any quotation before the Buyer's signed acceptance or order. The quotation
price will be exclusive of GST and may be increased if the Company suffers any
cost increases which are beyond its control in the supply, production and
delivery of Goods due to increases in the cost of materials between the date of
Contract (or where the Contract arises from a quotation, the date of quotation)
and the date of delivery, or if the Buyer varies or alters the requirements for
the Goods. Freight, insurance, and other handling charges shall be the
responsibility of the Buyer.
For the sale of Goods to Companies or incorporations not registered in New Zealand the
price shall be the price ruling at the date of delivery; and subject to any
variation of this clause which shall be notified to the Buyer in writing, the
price shall be paid by the Buyer to the Company as follows:
(a) in cleared funds prior to shipment of the
Goods by the Company (such as credit card payment) OR
(b) by irrevocable letter of credit at sight and
established by the Buyer, OR
(c) by any other means as notified to the Buyer
in writing when the order is placed.
Payment
Payment shall be made in advance of delivery of the Goods except where
the Company has agreed to provide credit to the Buyer in which case payment
shall be made by the 20th of the month following date of invoice, which terms
shall be declared in the Company invoice. The Buyer shall make payment of all
amounts due to the Company without any delay or deduction whether by way of
set-off, counterclaim or otherwise. If at any time the Company reasonably deems
the credit of the Buyer to be unsatisfactory, it may require the Buyer to
provide at the Buyer's cost, security for payment and/or the Company may
suspend performance of its obligations under this Contract until security is
provided to the Company's satisfaction and the Company may require the Buyer to
pay all costs incurred as a result of suspension and re-commencement of supply
including debt collection and legal costs.
Interest for Late Payment
The Company may charge the Buyer interest on any money's outstanding
under the Contract on a daily basis at a rate equal to 5% above the Company's
bank indicator lending rate. Interest is payable from the date payment was due
until the date the Company receives payment.
The Company's right to charge interest is without prejudice to the
Company's other rights or remedies for the Buyer's default in failing to pay on
the due date. The Company may suspend performance of any of its obligations and
under the Retention of Title clause secure any Goods previously supplied by the
Company and in possession of the Buyer to the value of the outstanding amount
owed until payment is made in full.
Delivery
Delivery by the Company to a carrier accepted by the Buyer or delivery
from the Company's premises to the premises of the Buyer constitutes delivery.
If the Buyer fails to take delivery the Company has the right to charge the
Buyer for costs of storage or transport or both. The Company shall not be
responsible for the validity of the person accepting the Goods on behalf of the
Buyer at the time of delivery.
Goods that are finished items but only part of an order may be
delivered in instalments at the Company's discretion and in such case each
delivery will be regarded as a separate contract and Goods delivered shall be
paid by the Buyer in accordance with the Terms of Payment.
The Company will make every effort to ensure delivery of Goods on time
but will not be liable for any loss or damage or consequential loss to the
Buyer arising from delays in delivery.
Risk, Ownership and Title
Risk of any loss, damage or deterioration of or to the Goods shall be
borne by the Buyer from the time of delivery of the Goods into the Buyer's care
and control and the Buyer shall properly insure the Goods from theft, fire or
loss damage. Where the Buyer fails to insure the Goods upon delivery and
suffers loss or damage to the Goods, and where the Goods remain unpaid, the
Buyer shall agree to pay the Company for the full cost of the Goods. Risk for
Goods shall include Goods provided to the Buyer on a consignment or sale or
return basis.
The Buyer agrees that the Company has legal and equitable right to
title in all and any Goods supplied which remain unpaid and ownership shall
only pass to the Buyer when the contract price is paid. For as long as
ownership in the Goods is retained by the Company, the Buyer will store the
Goods separately and in such a way that they are identifiable as the property
of the Company.
Notwithstanding that property in the Goods is retained by the Company,
the Buyer is hereby authorised to sell the Goods in the ordinary course of
business and to deal with such proceeds as fiduciary agent and bailee of the
Company until the Buyer pays the Company in full without deduction or setoff:
provided that such authority may be revoked by written notice at any time if
the Company deems the credit of the Buyer to be unsatisfactory or if the Buyer
is in default of its obligations under the Contract or any other contract
between the Company and the Buyer.
Where any Goods in respect of which title has not passed to the Buyer
are sold by the Buyer pursuant to the authority granted any book debt created
upon sale of such Goods and the proceeds of sale of such Goods when received by
the Buyer, shall be held upon trust by the Buyer for the Company and any
proceeds of sale so received by the Buyer shall be placed in a separate bank
account and shall first be applied towards the satisfaction of all indebtedness
of the Buyer to the Company.
If the Goods, the subject of this Contract, have become the constituent
of mixed with or attached to any other goods, meaning Goods that are sold by
the Company, and those goods are sold by the Buyer prior to the Company
receiving payment, then a portion of the proceeds of that sale, attributable to
the Company's Goods, shall be the property of the Company, and the Buyer shall
ensure that such proceeds are at all times held in a separate fund in trust for
the Company.
The Buyer hereby irrevocably gives the Company, its agents or servants,
the free and uninterrupted right to enter its premises during normal business
hours in accordance with the Credit (repossession) Act, to search for, inspect
and remove any of the Goods supplied in which the Company has retained
ownership and the Buyer will not hold the Company responsible for any economic or consequential loss
that the Buyer may suffer as a result.
The Buyer shall inform its creditors of the terms upon which it buys
Goods from the Company and that the Company may create and register a Purchase
Money Security Interest under the PPSA for any and all Goods and that the Buyer
agrees to waive the right to receive a verification statement for purposes of
s.148 of the Act. The Buyer shall inform any Trustee in Bankruptcy or
Liquidator of the Buyer or any Receiver of the Buyers business or assets of the
rights of the Company and title to the proceeds of sale.
The Security Agreement is a continuing security and will operate
irrespective of any intervening payment or settlement of account until a release
has been signed by the Company. The security interest granted in the Collateral
has the same priority in relation to any and all of the Goods supplied to the
Buyer at any time.
Claims for Returned, Damaged or Defective Goods
The Company may, at its discretion, repair or replace any damaged or
defective Goods or make a reasonable allowance on the purchase of goods to
replace the Goods provided:
(a) The Buyer returns the Goods within
thirty (30) days of delivery or within thirty (30) days of a third party
purchaser delivering the Goods back to the Buyer, together with a copy of the
invoice and a claim specifically identifying the damage or defect(s); and
(b) The Company has reasonable
opportunity to investigate the claim.
If the Buyer does not comply with the above requirements, the Buyer
will be deemed to have accepted the Goods and the Company will not incur any
liability whatsoever in relation to the Goods.
The Buyer agrees not to consider claims from a third party purchaser
and the Buyer will agree that the Company shall not consider claims from the
Buyer in respect of Goods which:
(i) are not intact and in original
condition.
(ii) have been improperly stored and
suffered damage.
(iii) have been sold to the Buyer on a
non-refundable basis.
(iv) have been sold to the Buyer on tender
or in non-standard lots.
(v) are more than (6) six months after
the date of delivery.
(vi) are repaired by the Buyer or a third
party without the permission of the Company.
Company Guarantee &
Liability
The Company's liability in respect of any claim shall relate only to
specific defects in the Goods arising from faulty timber or materials or
workmanship of the Company. The warranty on Goods shall be six (6) months from
the date of delivery to the Buyer OR three (3) months from the date from
delivery by the Buyer to a third party purchaser.
Where the Company accepts liability for damage or defect and elects to
repair or replace Goods it shall repair or replace the Goods to their original
condition but where timber or materials used in manufacture are not available
or where the Company has imported Goods for re-sale to the Buyer which are not
manufactured by the Company it shall repair or replace by other articles of
similar description and value (but can be of a standard type) and such
substituted articles shall become subject to the provisions of this Contract.
The Company shall not be liable for any breach or failure to perform
any of its obligations under this Contract where such breach or failure is
caused by war, civil commotion, hostilities, strike or lock out, act of God,
fire, governmental regulations or directions, or any other cause force majeure
beyond the Company's reasonable control. The occurrence of such an event shall
not give the Buyer a right of cancellation of the contract.
Consumer Guarantees Act 1993
Nothing in these terms is intended to have the affect of contracting
out of the provisions of the Consumer Guarantees Act 1993 except to the extent
permitted by that Act where the Buyer acquires the Goods for the business
purposes of a business and not for resale to a consumer and all provisions of
these terms shall be read as modified to the extent necessary to give effect to
that intention.
Where the Buyer onsells the Goods to third party consumer purchasers
the Buyer shall be mindful of its obligations under the Act to offer repair,
replacement or full value of the Goods to the consumer purchaser subject to the
claims conditions and upon informing the Company where damage or defects occur.
The Company shall determine the option to be taken at its sole discretion and
shall inform the Buyer. The Company
shall ensure that the Buyer does not suffer economic loss in the application of
the Company warranty under the Act. If the Buyer makes any other representations
to the purchaser the Buyer shall indemnify the Company against any liability or
cost incurred by the Company as a result of any breach by the Buyer of this
provision.
Applicable Law for Dispute and Arbitration
In the event of any dispute between the Company and the Buyer arising
out of this Agreement, the substantive laws of New Zealand shall apply and such
dispute shall be referred to a Mediator to be agreed between the parties and
the costs of mediation shall be equally shared and upon failure to accept the
resolution of the Mediator shall be referred to an Arbitrator to be agreed
between the parties and the costs of arbitration shall be equally shared and
upon failure to reach agreement arbitration will be conducted in accordance
with the New Zealand Arbitration Act 1996 and any amendments thereof and such
arbitration and legal hearings shall be conducted in New Zealand.
Guarantor
Where the Buyer is a Company, the person(s) referred to as guarantor(s)
in this Agreement shall personally guarantee the obligations of the Buyer.
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Contact Details:
Ph + 09 5764830
Fax + 09 577 3330
sales@noticeboardproducts.co.nz
42 Ben Lomond Cres
Pakuranga, Auckland
NEW ZEALAND
P O Box 38-895
Howick, Auckland
Hours:
Mon – Thurs: 8.00 – 4pm
Friday: 8.00 – 3.00pm
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