Terms & Conditions

CANTERBURY BALUSTRADE LIMITED.

Terms of Trade

TERMS AND CONDITIONS FOR SALE OF GOODS

1        Definitions

1.1     Unless the context otherwise requires, the following definitions shall apply to these terms and conditions:

         “Company” – Canterbury Balustrade Limited and its subsidiary companies.

         “Buyer” – the purchaser of the goods from the Company.

         “Default Rate” – the base lending rate charged by the Company’s bank plus a margin of 5 percent per annum.

         “Goods” – those goods supplied to the Buyer and which are described by item or kind on the packing slip or invoice associated with the goods.

         “GST” – goods and services tax.

         “PPSA” – the Personal Property Securities Act 1999 and associated amendments and regulations.

2        Supply

2.1     The goods will be supplied to the Buyer on these terms and conditions unless the Company agrees in writing to change them.

2.2     The Company will not be bound by any conditions included in the Buyer’s order unless it expressly accepts them in writing.

3        Price

3.1     The price for the goods shall be the price agreed between the Company and the Buyer at the date of the order but is subject to extra costs if adequate fixing is not provided.  The price does not include charges for taxes, insurance or building concents unless otherwise agreed between the Company and the Buyer.

3.2     Any price agreed between the Company and the Buyer at the date of the order may be varied if wages, salaries, materials’ costs, freight rates, taxes, government charges, insurance rates, duties or exchange rates are increased between the date of the order and the date of delivery unless otherwise agreed between the Company and the Buyer.

4        Payment

4.1     The Buyer shall pay for the goods on or prior to the date specified on the invoice. If the Buyer fails to pay on or before the due date the Buyer shall pay interest at the Default Rate from the due date until payment.

4.2     Payment by cheque, bill of exchange or other negotiable instrument will not be considered as payment until actually paid or honoured.

4.3     The Buyer shall pay the price in full and shall have no right to set off against the price any claims which the Buyer might have against the Company nor withhold payment on the basis of any such claims. The Buyer shall not hold any retentions unless agreed in writing prior to any order being placed.

4.4     The price shall become immediately payable regardless of the terms of payment and the Company may take immediate action to recover the price if the Buyer breaches this agreement, is insolvent, commits an act of bankruptcy, goes into liquidation or receivership, enters into a creditors composition, or has its credit standing impaired in any other way.

4.5     The Buyer will satisfy or reimburse the Company for all fees and expenses (including legal fees) incurred by the Company in collecting or attempting to collect any outstanding money or debts owed to the Company which are attributable to the Buyer.

5        Delivery

5.1     Delivery shall be made to the Buyer when the Buyer takes possession of the goods or any carrier takes possession of the goods for redelivery to the Buyer, unless agreed otherwise between the parties (with the exception that the Company may recall a delivery before it is taken into the Buyer’s physical possession if the Buyer has breached the terms of this agreement).

5.2     The Company will act reasonably to see that deliveries are maintained according to schedule but any period or dates quoted for delivery are to be regarded as approximate only.

5.3     Goods may be delivered in instalments.

5.4     The Company may stop deliveries until the Buyer has paid for all previous deliveries.  The Company may also stop or suspend deliveries if the Buyer’s credit limit with the Company is exceeded.

5.5     If the Company is unable to deliver the goods because of any cause beyond its control it may suspend delivery or cancel the Buyer’s order without incurring any liability for loss or damage suffered by the Buyer.  The Buyer shall not cancel or refuse delivery of any suspended order.

5.6     The Buyer shall not cancel or refuse delivery on the basis that the Company has inadvertently over-delivered or under-delivered.

6        Ownership

6.1     Ownership in the goods shall not pass to the Buyer and any proceeds of sale of the goods shall belong to the Company until the Buyer has paid for the goods in full.

6.2     The Buyer irrevocably gives the Company and its agents the right to enter upon the Buyer’s premises, without giving notice and without being in any way liable to the Buyer, if the Company has cause to exercise any rights it has under section 109 of the PPSA.

6.3     If the Buyer sells the goods before payment in full to the Company (notwithstanding clause 6.1 of this agreement), the Buyer will ensure that the proceeds of sale will remain identifiable or traceable to that sale.

6.4     Money paid by the Buyer to the Company will be applied to the earliest-in-time delivery or contract that is unpaid or has a portion unpaid.

6.5     The Buyer waives its right to receive any financing statement or financing change statement from the Company.

7        Risk

7.1     Sole risk in the goods shall pass to the Buyer upon delivery even though ownership of the goods may not have passed to the Buyer.

8        Warranties and Conditions

8.1     This clause shall apply where the Buyer is not a consumer (as defined in the Consumer Guarantees Act 1993).

8.2     All representations or terms (including any condition or warranty expressed or implied by law, statute or otherwise) not expressly included in these terms and conditions are hereby expressly excluded.

8.3     The Company’s liability arising from any of these terms and conditions or a breach of them or for any misinterpretation shall be limited to the price of the goods or the actual loss or damage suffered whichever is the lesser.

8.4     Any claim made against the Company in respect of the goods must be in writing and be received by the Company within 30 days of delivery of the goods and the Company may at its option replace the goods in complete discharge of any such claim.

8.5     Under no circumstances will the Company be liable for indirect or consequential loss of any kind (including financial and economic loss).

8.6     The Buyer agrees to indemnify and keep indemnified the Company from and against all costs, damages and expenses incurred by or recovered against the Company in respect of any claim for the infringement of any letters patent or registered design where the Company has used them on the Buyer’s instructions.

9        Guarantees

9.1     This clause 10 shall apply where the Buyer is a consumer under the Consumer Guarantees Act 1993.

9.2     The provisions of the Consumer Guarantees Act 1993 shall apply and this agreement will be read so that it does not conflict with any guarantees in that Act.

10      Cancellation

10.1    The Buyer shall not be entitled to cancel any order or part of any order without the written consent of the Company.

10.2    The Company is entitled to cancel any order if the Buyer breaches this agreement, is insolvent, commits an act of bankruptcy, goes into liquidation or receivership, enters into a creditors composition, or has its credit standing impaired in any other way.

11      Enforceability

11.1    Each provision of these terms and conditions is severable in whole or in part and if any provision is held to be illegal or unenforceable for any reason, only the illegal or unenforceable portion shall be affected and the remainder shall remain in full force and effect.

11.2    Any waiver of these conditions by the Company must be in writing and is confined to the subject matter of the express waiver.

12      Governing law

12.1    This agreement shall be governed by the laws of New Zealand.

13      Force majeure

13.1    The Company shall be relieved from its liability for performance under this contract and the Company shall not be liable for any loss suffered by a Buyer in the event of: industrial disputes of any kind, fire, explosion, acts of God, breakdown of plant, unavailability of materials, hostilities, local or national emergency, civil commotion, government acts, orders or regulations, or any acts or events outside of the Company’s control of any kind (whether the cause is a direct or indirect influence on performance).

14      Freight policy

14.1    The Company reserves the right to pass on any freight charges incurred. The Buyer will be invoiced for freight charges at the discretion of the Company.

15      Returns policy

15.1    No goods will be accepted for credit.

16      Whole agreement

16.1    This agreement represents all of the terms and conditions on which the goods are supplied by the Company to the Buyer.  This agreement supersedes all other agreements, terms of trade and terms specified in the Buyer’s orders or forms whether entered into or existing before or after the date of this agreement, unless the parties specifically agree otherwise in writing.