North Harbour Fencing Ltd Terms of Trade
Last updated: 30 August 2021
These terms of trade (“Terms”) between North Harbour Fencing Ltd (the “Company”) and the customer (the “Customer”) shall apply to all orders for Goods and Services accepted by the Company from the Customer. These Terms shall prevail and take precedence over any document or verbal discussions with the Customer.
Where the Company fails to enforce any Terms, the Company will not be deemed to have waived these rights with respect to any Terms, conditions or right.
Quotation and Price
The Company may publish a price list, or shall confirm the price of Goods and Services as a quotation and the Customer shall confirm acceptance in writing. Unless stated otherwise in writing, quotations shall be valid for (30) thirty days and the Company may withdraw any quotation before the Customer’s signed acceptance.
The quoted price may change if the Customer varies or alters the specifications of the quotation or the requirements for the Goods.
Payment
Payment shall be made upon delivery of the Goods and Services except where the Company has agreed to provide credit to the Customer in which case payments shall be made on or before the date specified on the invoice.
The Customer shall make payment of all amounts due to the Company without any delay or deduction whether by way of set-off, counterclaim or otherwise.
Late Payment
The Company may charge the Customer interest on any amounts outstanding on a daily basis at a rate equal to 5% above the New Zealand Official Cash Rate and 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 Customer’s default in failing to pay on the due date, and the Company may suspend performance of any of its obligations and secure any Goods it has supplied in the Customer’s possession until payment is made in full. Any costs relating to recovery of outstanding payment and/or Goods, including debt collection fees will be charged to the Customer.
Description, Delivery and Risk of Goods
The Company warrants that the Goods shall be as described in its quotation or proposal. The Customer agrees that liability for Goods supplied by the Company according to the description of the Goods shall remain with the Customer and the Customer will not hold the Company responsible for any loss whatsoever as a result of a mistake by the Customer that the Goods are not fit for the purpose intended.
Delivery by the Company’s nominated carrier, or delivery from the Company’s premises to the premises of the Customer constitutes delivery.
The Company will make every effort to ensure delivery of Goods within any agreed timeframes, but will not be liable for any loss or damage or consequential loss to the Customer arising from delays in delivery.
Risk in the Goods shall pass to the Customer upon delivery. The Customer agrees to insure the Goods upon delivery and will not hold the Company responsible for any loss or damage that may occur while under the risk of the Customer, transport or both.
Ownership and Title
The Customer agrees that where the Company has supplied Goods for the Customer’s use or for resale by the Customer, the Customer shall deal with the proceeds from the sale as fiduciary agent and bailee of the Company and shall retain the sale proceeds on a separate trust account that are not mixed with other funds of the Customer and that the Company has legal and equitable title and ownership of the Goods.
Where the Goods have been altered from that supplied or mixed and are severable but not identifiable, the Company is co-owner of the mixed parts in proportion to the contribution made by the supplied Goods to the value of the Customers goods or property. In any event the Customer agrees that where Goods remain unpaid by the Customer the Company has unreserved right to enter the premises of the Customer and remove materials or parts or Goods in relation to the unpaid amount and that the Customer will not hold the Company responsible for any economic or consequential loss that may be suffered by the Customer as a result.
The Customer agrees that where Goods supplied have been made from tools or dies owned by the Customer such tools and dies shall constitute part of the value of the Goods supplied and that the Company has an unreserved lien over and may take possession of such tools and dies until the Customer pays in full.
The Customer consents to the registration of a charge or security against its assets, pursuant to the Personal and Property Securities Act in respect of all goods supplied to the Customer by the Company, which the Customer has not paid for.
Company Warranties and Liability
The Company provide a warranty for its workmanship and Services for a period of two years. In relation to Goods, the Company passes on the warranties provided by the manufacturer of those Goods.
The Customer must make any warranty claims to the Company in writing within thirty (30) days of event occurring.
The Company will not accept any warranty claims by the Customer for any reason where:
The defects or damage has not been notified to the Company within (30) thirty days of the event occurring or the Goods are outside the warranty period.
The Goods have been sold on a non-refundable basis or second hand Goods or where the Goods have been used with or attached to other goods not supplied by the Company and are damaged or not severable.
The defect or failure of Goods, materials or parts is due to normal wear and tear or weathering.
The defect or failure is as a result of damage, misuse, negligent maintenance or care while in possession of the Customer of the Customer’s failure to follow the Company’s instructions.
The defect or failure of the Goods is due to tools or dies or instructions or designs supplied by the Customer.
The defect or failure is caused by or contributed by the Customer’s failure to use the Goods in accordance with the instructions for use and maintenance.
The defect or failure is outside the Company’s control due to weather, strikes, government action or a force majeure event.
Where the Company accepts liability for defective Goods covered by its warranty it may replace Goods with those of a of similar description and value.
The maximum liability payable by the Company for any warranty claim shall be the purchase price paid by the Customer. The Company shall not, under any circumstances, be liable for any indirect, consequential loss, or other damages arising out of the Supply of Goods and Services to the Customer.
Intellectual Property
The Customer agrees that where the Company supplies intellectual property in the form of written instructions,drawings, designs or manuals the ownership of such intellectual property shall remain with the Company and the Customer further agrees that it shall not use the intellectual property in any manner whatsoever whether incomplete form or in any way adapting or altering unless the Customer has made payment in full.
Where the Company has used tools or dies supplied by the Customer or has followed designs, specificationsand instructions provided by the Customer, the Customer shall indemnify the Company against all damages,cost and expenses in respect of which the Company may become liable by following such design specificationand instructions and including those arising from the infringement of patents, copyrights or trademarks by theCustomer.
Grounds for termination by the Company
Any order for Goods or Services may be terminated by the Company immediately on written notice to the Customer if:
The Customer defaults on its payments due to the Company.
The Customer commits any act of Bankruptcy, or enters into any composition or arrangement withcreditors.
The Customer does any act which would render it liable to be liquidated or if a resolution is passed orproceedings are commenced for the liquidation of the Customer or incorporation or if a receiver is appointed in respect of all or any assets of the Customer.
No release from obligation
Termination of this agreement shall not relieve the Customer of its obligation to pay all money owed by it to the Company on any account whatsoever, which money shall be payable immediately notwithstanding that the date for payment of the money may not have arrived. Termination of the agreement shall not relieve theCustomer from liability arising from any antecedent breach of the terms of this agreement.
Immediate Steps upon Termination
Upon Expiry of the terms (and any period of renewal of the term), the termination of this agreement for any reason, all rights of the Customer granted by the agreement shall terminate and the Customer shall not beentitled to receive any rebate or refund of the whole or any part of the money paid pursuant of this agreement.
New Zealand Consumer Guarantees Act 1993
Nothing in these terms is intended to have the effect of contracting out of the provisions of the ConsumerGuarantees Act 1993, except where the Customer acquires the goods in a business to business situation tothe extent permitted by that act and all provisions of these terms shall be read and modified to the extent necessary to give effect to that intention.
The Customer shall not, in relation to the supply of the goods from the Company, give or make anyundertaking, assertion or representation in relation to the goods without the prior approval in writing of theCompany and the Customer shall indemnify the company against any liability or cost incurred by the company as a result of any breach by the Customer of this provision.
Arbitration
In the event of any dispute between the Company and the Customer arising out of this agreement, such as dispute shall be referred to an arbitrator under the laws of New Zealand to be agreed between the parties and upon failure to reach agreement arbitration be conducted in accordance with the Arbitration Act 1996 and any amendments thereof.
Notwithstanding any provisions herewith, the Company has an election to waive arbitration (and refer thedispute or unpaid debt to the Disputes Tribunal) in respect of any debt of $7,500.00 or less. The Customer commits to any such arbitration waiver by the Company.